Family Law Express Brief preparing yourself for family court... Sat, 17 Aug 2019 14:15:36 +0000 en-US hourly 1 Parental Alienation – The Invisible Abuse Wed, 22 May 2019 11:08:26 +0000 ]]> Most people on Earth are well aware of heinous physical and sexual abuse cases as they’re oftentimes covered by the mainstream media. Criminal, Family and Juvenile Court Judges hear tragic cases from kids dying to child sex trafficking and others classified as high-conflict situations. The bottom line is our most precious resource, our kids, are traumatized victims due to horrific abuse at the hands of monsters and those charged with their protection.

The Problem

parental-alienation-syndromeThe Problem What people do not hear much about are bitter child custody cases where children and families are torn apart due to another form of abuse called parental alienation. I call it the invisible abuse because it leaves no physical or medical evidence. Parental Alienation is a form of mental or emotional child abuse that leaves hidden scars, as it’s the systematic psychological manipulation of a child who is sadly wielded by a parent or guardian as a pawn, weapon or tool against the other parent.

Typically, the alienating parent denigrates or berates the targeted parent and the child is a proxy witness to the badmouthing campaign against the latter. And, oftentimes the child victim becomes brainwashed against the targeted parent and if the alienation becomes severe enough total rejection can occur. Targeted parents in cases of alienation can and do lose relationships with their children. Allegations of parental alienation hit high-profile cases such as those of actors Brad Pitt and Angelina Jolie and their children, and Johnny Depp and his estranged spouse Amber Heard –  Depp claims he was falsely accused of domestic violence by Heard, and those same charges negatively affected his children from former paramour Vanessa Paradis.

A seminal article in the December 2018 issue of Psychological Bulletin co-authored by Psychology Experts Dr. Jennifer Harman and Dr. Edward Kruk categorized Parental Alienation as a form of family violence. Dr. Kruk even warned legal and mental health practitioners they’re being unethical and wrong if they ignore the significance of parental alienation.

Parental alienation is published in the bible of mental health disorders known as the DSM-5, but in less obvious verbiage. Four sub-types; Child Affected by Parental Relationship Distress (CAPRD), child psychological abuse, estrangement, and parent-child relational disorder exist in the DSM-5 that mental health and legal experts can use to their behest. And, the World Health Organization (WHO) claims Parental Alienation may be published and coded in their next ICD version (ICD-11) in 2021 or 2022.

Clearly, child victims of parental alienation can develop signs and symptoms consistent with victims of trauma; depression, anxiety, nightmares, flashbacks, recurring intrusive memories seen in Post-Traumatic Stress Disorder (PTSD), eneuresis, and somatic issues such as headaches, stomach aches, nausea and vomiting. False allegations of domestic violence, and physical and sexual child abuse are sometimes used by warring parents to achieve equity-at-law in Court. Parents need no physical proof and can rely on hearsay from the mouths of babes to obtain equity-at-law in Court. These unfounded or false abuse allegations represent overt forms of parental alienation.

The Solution

Fixing cases of parental alienation which translates to intense Trauma Focused – Cognitive Behavioral Therapy (TF-CBT) for child victims with reunification with their targeted parents is not an easy task. Oftentimes, Judges must order the appointment of fiduciaries such as Parenting Coordinators, Reintegration, Reunification Psychotherapists, and Child Custody Evaluators to facilitate the process, and figure out a plan of attack to extinguish the beast which is alienation and work in the best interest of the children and families. Sometimes in cases of severe parental alienation attachment bonds between children and parents cannot be restored. In this writer’s opinion, mental health, social science (including child protection), and legal communities must act in concert to preserve the best interest of children, and well-being of families on a global basis. We must notice parental alienation early on in Court cases and nip it in the bud before it exacerbates and reaches the severe stage of the same. Police agencies, prosecutors and legislators must work feverishly, and consider the Harman & Kruk theory that parental alienation is tantamount to family violence and adopt criminal penalties for this invisible form of child abuse.

Related Family Law Judgments

Family Law Proceedings: How to Find Evidence Mon, 08 Jan 2018 21:15:44 +0000 ]]> family law evidenceThere are numerous tools available within the Family Law Rules to assist in the gathering of evidence in preparation for family law proceedings. These include Notice to admit facts, Subpoenas, Answers to Specific Questions amongst others.

Below we explore a number of these tools and at what stage of proceedings they are available and prudent to be utilised.

Then in the Family Law Rules, we have:

(a) Discovery and Inspection against the Respondent under Order 20.

The importance of discovery and inspection against the Respondent should not be underestimated. While in the vast majority of cases, informal discovery should be the way to proceed to minimise costs, certain cases clearly fall outside that category. Any Affidavit of Documents should be carefully checked and more than just a cursory examination of the material set out therein should be undertaken. An experienced practitioner or an investigative accountant should sift through the discoverable documentation. Do not accept the other party’s invitation to copy material and make it available to you if you suspect anything.

Fortunately, discovery and inspection is available at an early stage in proceedings. Properly undertaken, it can uncover valuable clues as to whether you are looking at a constructive trust argument or a possible Section 85 (setting aside) Application. While the other party must make full and frank disclosure, the fact is that many do not do so. As to what the obligations are in this regard both as Applicant and Respondent, see for example Briese v. Briese[8].

(b) Answers to Specific Questions – Order 19

There may be times where this procedure can be put to effective use. It is not available until after discovery and there is a limit of one request without the leave of the Court. The difficulty is that if your questions are not worded very carefully, you may not achieve the answer you want, merely a denial on a technical point. Generally speaking, this procedure is rarely resorted to, remembering that it is the ‘less than frank’ other party who will be providing the answers. If you do decide to take this step, the approach is to file and serve the questions on the other party, who then has 21 days after service to give the answers or make appropriate objections. A disadvantage with this procedure is that you put the other party and their supporters on notice as to the sorts of questions you want answered. You may wish to hold some questions back for the witness box or for other witnesses. The questions might therefore be limited to the obtaining of information before issuing subpoenas or investigating other avenues. This will have to be discussed in detail with Counsel, the investigating accountant and the client. There is no ‘right answer’ for the best way to proceed. Every case different.[9]

(c) Notice to Admit Facts (Order 22)

If the Respondent is proving difficult, this may set up a successful application for costs. Coupled with an effective request for Answers to Specific Questions, this will start the investigative process in the right direction. Again, a notice is served in writing in accordance with the specified Form 27. If the other party does not dispute the facts set out within 14 days after service, then that fact or document is admitted by the other party. Subrule 6 provides that where a party serves a Notice Disputing a fact or document and afterwards is proved to be wrong, the Respondent shall (emphasis added), unless the Court otherwise orders, pay the costs of proof.

(d) Notice to Produce (Order 20 Rule 6)

Too often solicitors tend to serve a ‘standard form’ Notice to Produce and pay little attention to what is ultimately produced at Court. The Respondent’s solicitors often wonder whether the document is served merely to ‘upset’ the client. Properly used, it is the appropriate method of ensuring that documents in the hands of the other party are brought to Court to be placed in evidence if required. Again, an experienced solicitor or investigating accountant should be available to inspect the material provided.

(e) Obtaining third party documents (Order 20 Rule 7)

This is how to obtain production of specific documents from third parties. It is a means whereby certain documents can be examined before trial. It does however, have its limitations in that it refers to documents and their production. There is no procedure here for cross-examining the holder of the documents. In procedural terms, an application needs to be filed and served (using the specified Form 8), together with a supporting Affidavit. That Affidavit must set out sufficient material to satisfy the requirements outlined by Treyvaud J. in In the marriage of J[10], being: That the documents sought to be produced exist. That the documents are in the possession, custody or control of the Respondent to the Application (not the other party). That the documents relate to a matter in question in the proceedings and which the Respondent could be required to produce at the hearing; and That it is just that the Applicant should inspect the documents. Anyone considering this procedure should carefully read that decision to ensure that these requirements are satisfied. His Honour commented that he was prepared to assume that Trustees and Companies will as a matter of course prepare and hold copies of relevant Trust Deeds, balance sheets, distribution Minutes and taxation returns. This class of documents in fact represents most of what you would probably want in situations where the other party is a beneficiary of a Trust controlled by a third party.

Be aware that the third party’s costs may have to be paid by your client[11]. Service of documents on the holder of the documents is to be in accordance with Order 18 Rule 5 (1) or (2). This is either personal service for a natural person and ‘appropriate service’ in the case of a body corporate. The other party also has to be served (via their address for service). A careful reading of Order 20 Rule 7 and following is strongly recommended when considering such an Application.

(f) The Subpoena – (Order 28)

With the above procedure, you are very much in the hands of the Court and its discretion. Generally speaking, the Order 20 Rule 7 procedure is not often used as more often better results are obtained by the use of Subpoenas. Again, Treyvaud J. confirmed this In the marriage of Epstein [12], where (at page 592) he indicated that properly used, subpoenas were the only means available to obtain inspection of documents not in the possession, custody or control of the Respondent. It was a sensible way to require production of documents in complex cases, well ahead of the date for final hearing.

The problem then is to ensure that you have a hearing date ‘well before the final hearing’. The best way to achieve this is to seek orders such as for interim spousal maintenance, injunctive relief, security for costs (commonly known to Victorian solicitors as a ‘Barro’ application), or even to run a Section 85 Application to set aside sham transactions. You cannot use the compulsory Order 24 Conference date. There is no allowance for cross-examination of witnesses at this stage of procedures in any event.

The decision of Epstein is worthwhile reading, if only to get an idea of the broad class of documents which may be relevant in a complex case. The key word however is ‘may’. The Judge indicated that the production of a document by a stranger is only required if the document is sufficiently relevant to the action. Just because a marriage was a long marriage, does not make all documents relevant. The clear message is that you must target the particular document or class of documents you want, and ensure that they are specified with particularity. The trial Judge also made reference to the fact that subpoenas on companies should be addressed to ‘The Company by its proper officer’. This ensures that the Company is directed to produce the requested documents.

The fact is that most third party institutions do not object to receiving a subpoena. They only want to ensure that they receive sufficient time to comply and are paid for their efforts. Objections are invariably raised by corporate entities in some way linked with the other party. They may ‘play hard’ for obvious reasons. You may even lose a few rounds and have costs awarded against you before you get to the heart of the matter. Note that in Epstein, the wife’s subpoenas were issued in the months following up to the final hearing. A hearing date had been fixed. The wife, who issued the subpoenas herself, did not seek to cross-examine any witnesses at that stage. For an outline of the procedure to be followed for subpoenas to produce documents, see Waind V Hill & National Employers Mutual General Association Ltd[13]

Most practitioners are aware of the procedure for serving a subpoena to produce documents and/or give evidence. Be aware of the time limitations set out in Order 28, and to the provision of appropriate conduct money. The major benefit of a subpoena is that a third party can be called to give evidence as well as to produce documents. Extend courtesy to genuine third party witnesses. Let them be on call. Telephone financial institutions as soon as you can to discuss precisely what is needed. There is nothing worse than a bundle of subpoenas being issued and the first contact a witness has with the person issuing the subpoenas is when they are at the Family Court. Small wonder most third parties have a very bad impression of the legal process.

Subpoenas are all very well. However, who pays witnesses’ expenses? If you are not successful in proving the other party to be a liar, your client may end up footing significant costs for the production of documents and for witnesses’ expenses. It is not a process for the faint hearted and clients need to be warned about the possible ramifications of simply issuing subpoenas on everyone of possible relevance, which is sometimes done (e.g. Mrs Epstein). A carefully worded Notice to Produce may be of greater use in the interlocutory stages. It is too late and too risky ‘finding out’ at the final hearing. Following the first directions hearing, use the time before the final hearing to do something about issuing subpoenas returnable before that date, if necessary. Arrange for the matter to be listed before the trial Judge and to request a mention date seven to fourteen days before the final return date. This can be the return date for subpoena for the production of documents. However, the problem of cross-examination of witnesses is still not resolved. At this point, that can only be achieved at the final hearing and that may be too late. You need to think about your case well beforehand and if necessary apply for appropriate interlocutory orders and to have interim hearing. Even so, costs may prohibit or limit this idealistic approach.

(g) Discovery by use of Order 21 (the ‘Anton Piller’ Order)

Order 21 allows the seizure of documents or records on an urgent basis and usually without notice to the person to whom the Order is directed. Typically, the target would be a bank safety deposit box. This technique has been used with some success in limited circumstances. Sometimes actual assets such as cash is found. More likely, useful documentation is forthcoming. Also available are the injunctive powers under Section 114 of the Act, to preserve assets. However, this is usually not an avenue for discovering or determining control of those assets. For an example of a case where an ‘Anton Piller’ order was granted, see In the Marriage of Mazor [14].


[8] 1986 FLC 91-713. See also Oriolo and Oriolo (1985) FLC 91-653 and Black and Kellner (1992) FLC 92-287. Each party must make a full and frank disclosure in financial matters. This is fundamental to the whole process under the Family Law Act.
[9] For a detailed analysis of the scope and function of specific questions, see ‘Discover and Interrogatories’, by Simpson, Bailey, and Evans : Butterworths 1990 p 103-106 
[10] (1988) 12 Fam LR 836. Note the comments on this procedure in Degraff and Degraff (1991) FLC 92-224, suggesting that it is rendered redundant by the proper use of a subpoena returnable before the final return date. Another vote in favour of ‘discovery by subpoena’? 
[11] Order 20 Rule 7.
[12] (1993) 16 FAMLR 588 
[13] [1978] 1 NSWLR 372 at 381. This decision also supports the proposition that if the person producing the documents does not object to inspection, then normally there would be little reason not to permit inspection by either party. With a little luck, and with the other party being careless, a widely drawn subpoena may be very effective.
[14] (1992) FLC 574

This is the second article in the series of articles from Peter Szabo’s publication “More Effective Use of your Expert Witness in Family Law Proceedings”

Same-Sex Parents Who Separate: Who gets the Children? Thu, 14 Sep 2017 04:07:21 +0000 ]]> same-sex-parents-and-childDespite the recent stalemate between the Coalition federal government and the Opposition in the controversial Same Sex Marriage debate, Australian governments have previously enacted significant legal reforms that have recognised the increasingly prominent roles of gay people in traditional family structures.

Over the years, the Australian government introduced reforms aiming to remove discrimination against same-sex couples and providing same-sex couples the same entitlements as heterosexual de-facto couples.

The reforms have emphasised the importance of the roles of both parents in the welfare of the child.

Effectively this means when same-sex parents separate, the biological parent does not have an advantage over non-biological parents in seeking parenting orders.

As you will see below, this is because the Family Court regards the best interest of the child as the main consideration when deciding on orders.

Recognition of Same-Sex Couples and Parents

In 2008, the Australian Human Rights Commission’s report Same-Sex: Same Entitlements 1 published their findings of  laws which discriminate against children of same-sex couples and was in breach of the Convention on the Right of the Child.

The laws failed to protect the best interests of the child in work-related and financial entitlements. As a response, over 85 pieces of legislation were amended by the Same-Sex relationships (Equal Treatment in Commonwealth Laws – General Law reform) Act 2008 (Cth).2

Same-sex relationships are now included in the definitions of ‘de-facto partner,’ ‘child,’ ‘parent,’ ‘couple,’ and ‘family.’

In addition to the federal amendments, major changes in state laws further recognise same-sex relationships and their parental rights. For example in NSW, Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) granted equal parenting rights for females partners of mothers, and both are listed as mothers on the child’s birth certificate.3

Most children born or adopted by same-sex couples are now legally recognised as the children of both same-sex parents for the purposes of the family law and child support. This includes:

  • Children born through assisted or artificial conception to lesbian couples;
  • Children adopted by same-sex couples;
  • Children born under certain non-commercial surrogacy arrangements.

Now recognised as de-facto parents, same-sex parents can apply to the Court for parenting orders in their own right as a parent, as opposed to proving that they were a person concerned with the care, welfare, or development of the child. 4

Will the biological parent have an advantage in Court over the non-biological parent?

A major issue that concerns same-sex parents in dispute is whether the biological parent has an advantage over the non-biological parent, assuming the child is not adopted.

The Family Court has stated on numerous occasions that there is no such presumption in favour of a biological parent. 5

Although parenthood is an important factor especially in relation to particular provisions that applies to parents only, there is no hierarchy of preference prescribed under the Family Law Act.

In particular, section 65C does not prescribe a hierarchy to favour the biological parent in parenting orders. 6.

There is no preference for the biological parent mainly because the Court looks at the child’s best interests as a paramount consideration rather than the circumstances of the child’s conception and the gender of the child’s parents. 7

This is consistent with the intentions of the amendments of the Family Law Act in 2006 8 which put a greater emphasis on the role of both parents and their responsibilities for the child.

The Full Court, having examined the Explanatory Memorandum to the amending legislation, said there was no suggestion of particular weighting or order to be prescribed. 9

Not only does this reinforce that there is no advantage to the biological parent, but it highlights a more flexible approach and greater recognition of ‘new’ forms of family, including families with same-sex parents. 10

In the case of Aldridge v Keaton, 11, the Full Court of the Family Court considered when it is appropriate or is not appropriate for a person with non-biological ties to a child to have a parenting order made in their favour.

The biological mother argued that because she had sole parental responsibility, this meant that no order for the child to spend time or communicate with the non-biological parent was available.12

The Court dismissed this argument and highlighted that whilst there is an emphasis on parents in the Family Law Act, it is important that each case must ultimately be decided on its own particular facts, with the best interests of the child as the paramount consideration.13(See below for details on what are the best interests of the child.)

There are many factors to which the Court can take into account and it all depends on each individual case. For example, in discussing the best interests of the child in Lusito v Lusito 14, the Court took into account the non-biological parent’s role as primary carer of their child as one consideration when making an order for sole parental responsibility in favour of the non-biological parent.

Although there is no presumption in favour of the biological parent for parenting orders, it has been noted by the Court that there may be a need for further legislative amendments to clarify the non-biological person’s status as a parent. 15

The Best Interests of the Child

Since 2006, provisions in the Family law Act governing ‘child custody’ have been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). 16

As briefly mentioned above, the law now focuses more on responsibilities and the child’s interests rather than ‘child custody’ and ‘parental rights’ and ‘parental control.’ In other words, it is not a matter of who gets the child; rather it is a question of what is best for the child.

The amendments emphasised the 2 types of considerations – primary and additional considerations – which must be taken into account when making parenting orders in the child’s best interest. The considerations are examined weighted and applied in each individual case. 17

Both same-sex parents can apply to the Family Court or to the Federal Circuit Court of Australia for a parenting order.18

Under section 64B of the Family Law Act, parenting orders may deal with issues on whom the child is to live with, the time spent with person(s), allocation of parental responsibility, maintenance, communication and more.19

When making a parenting order, the court must consider the best interests of the child. 20

The court has emphasised this as a paramount consideration but not the sole consideration. 21

Further, as emphasised in Barnham & Geyer where the child’s best interests conflict with the parent’s rights, usually the Court will favour the best interests of the child. 22

1. Primary Considerations

First, the court will address the primary considerations. These are:

  • The benefit of the child of having a meaningful relationship with both parents 23
  • The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 24

A meaningful relationship is one that is important, significant and valuable to the child. 25

This requires careful analysis on a case by case basis. 26

Pursuant to the new provision under section 60CC(2A) of the Family Law Act, 27, if the Court finds the first primary consideration of having a meaningful relationship is inconsistent with protecting the child from harm, then greater weight is given to the second primary consideration to protect the child from such harm.

2. Additional considerations

Second, the Court will consider 13 other additional considerations outlined under section 60CC(3) of the Family Law Act. 28 In summary they include:

  • The child’s wishes
  • The nature of the relationship between the child and the parents
  • The financial ability of the parent to care for the child
  • The ability of the parent to provide for intellectual and emotional needs of the child
  • The level of connection between the parents.

Presumption of Equal and Shared Parental Responsibility

In addition to the above considerations and in accordance with section 61DA of the Family Law Act, 29, the Court presumes that it is the child’s best interest for the parents to have equal and shared parental responsibility for the child.

However, the presumption will not apply if there are reasonable grounds to believe that there is family violence or that the parents are engaged in abuse of the child or another child. 30

The presumption can be rebutted if the court is satisfied that it would be contrary to the child’s best interests for equal shared parental responsibility for the child. 31

For those seeking an order for equal shared parental responsibility, pursuant to section 65DAA, 32, the court will consider whether equal time or substantial and significant time is in the child’s best interest. If so, the court will then consider whether equal time is ‘reasonably practicable.’

This is a two-step process as highlighted in the High Court Case of MRR v G, 33 and it is only when both questions are answered in the affirmative, then the court will make such an order.

Download Presentation (PPTX)

  1. Australian Human Rights Commission’s Report, Same-Sex: Same Entitlements
  2. Same-Sex relationships (Equal Treatment in Commonwealth Laws – General Law reform) Act 2008 (Cth)
  3. Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW)
  4. See,Family Law Act 1975(Cth) ss 4, 65D
  5. Aldridge v Keaton 2009 FamCAFC 229;Re Evelyn (No 2) (1998) 23 Fam LR 73; Rice v Miller (1993) 16 Fam LR 970
  6. Aldridge v Keaton 2009 FamCAFC 229, 83
  7. Aldridge v Keaton 2009 FamCAFC 229, 78
  8. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
  9. Aldridge v Keaton 2009 FamCAFC 229,
  10. Aldridge v Keaton 2009 FamCAFC 229, 77
  11. Aldridge v Keaton 2009 FamCAFC 229 .
  12. Aldridge v Keaton 2009 FamCAFC 229, 114 .
  13. Aldridge v Keaton 2009 FamCAFC 229
  14. Lusito v Lusito 2011 FMCAfam 55,
  15. Aldridge v Keaton 2009 FamCAFC 229, 22 .
  16. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) .
  17. Goode & Goode 2006 FamCA 1346 10 .
  18. Family Law Act 1975 (Cth) s65D .
  19. Family Law Act 1975 (Cth) s 65B
  20. Family Law Act 1975 (Cth) s 60CA .
  21. See e.g. Barnham& Geyer 2013 FCCA 1911 .
  22. Barnham & Geyer 2013 FCCA 1911 60 .
  23. Family Law Act 1975 (Cth) s 60CC(2)(a) .
  24. Family Law Act 1975 (Cth) s 60CC(2)(b) .
  25. McCall & Clark 2009 FamCAFC 92 .
  26. B& B 1997 FLC 92-755.
  27. Family Law Act 1975 (Cth) s60CC(2A) .
  28. Family Law Act 1975 (Cth) s60CC(3) .
  29. Family Law Act 1975 (Cth) s 61DA .
  30. Family Law Act 1975 (Cth) s 61DA(2) .
  31. Family Law Act 1975 (Cth) s 61DA(4)
  32. Family Law Act 1975 (Cth) s 65DAA .
  33. MRR v GR 2010 HCA 4

10 Common Misconceptions about Australia’s Shared Parenting Laws Mon, 05 Sep 2016 06:24:06 +0000 ]]> Since the introduction of Australia’s ground breaking Shared Parenting (child custody) Myths-and-factslaws in 2006, there has been a decidedly facile campaign of misinformation, sponsored primarily by the advocates of the status quo, and designed evidently to mis-represent the operation of these laws.

Following is a list of 10 common misconceptions about Shared Parenting in Australia, that have been circulated so broadly that they are on the whole accepted as truth, but are none-the-less little more than exceptions, equivocations or categorical falsehoods.

  1. Children are forced into equal time arrangements by Australia’s Shared Parenting legislation

NOT TRUE. There is nothing mandatory about Australia’s Shared Parental Responsibility legislation (Shared Parenting laws). If anything, it has been described as a soft alternative to what was originally preferred by the majority in Parliament in 2006, being a “rebuttable presumption of equal time parenting“, which itself is not mandatory and is determined primarily on whether such an arrangement can be safe, practical and in the child’s best interest.

Since the introduction of these laws, there has been a decidedly deceptive campaign by some journalists and single mother’s groups to mis-represent these laws as being inflexible and mandatory in nature, and as a result forcing Judges to place children into unsafe or impractical parenting arrangements. Terminology such as “mandatory” and “forced with” have often been used in newspaper headlines or opinion pieces to portray these laws in a manner that is quite unequivocally untrue.

The Family Court’s Shared Parental Responsibility Outcomes report underscores the fact that there is nothing mandatory about these laws, where the majority of court outcomes since the introduction of these laws still result in the child residing almost exclusively with the mother.

If these laws were mandatory in any shape or form, one would have expected that close to 100% of court outcomes would have resulted in equal parenting time arrangements, however as evidenced by the Court’s own figures, the figure is significantly less at only 15% of outcomes.

So someone has been fudging the truth to quite a significant degree, and this should be an important point to remember when reading commentary on this debate. Given that some women’s groups have described Australia’s Shared Parenting laws as another form of domestic violence against women, this debate is clearly about something more than what is best for our children, in the eyes of some groups at least. As a result, the misrepresentation of facts, the gender specific vitriol and in some cases the desperate attempt to associate Shared Parenting with Paedophilia, have been unparalleled in this country, even for an issue that is so typically vexed and controversial as family law.

  1. The risk of Child abuse increases for a child in a Shared Parenting arrangement.

 NOT TRUE. Children in Shared Parenting arrangements have the lowest recorded incidence of Child Abuse in Australia, even lower than that of intact families. Conversely, children in Sole Custody arrangements have the highest risk of Child Abuse in Australia. It should be noted that over 70% of all familial Child Abuse occur in single mother households, 1, 2, 3.

Some have highlighted the child-protective dynamics inherent in Shared Parenting arrangements as being similar to that already recognised in extended family structures. It has been argued that the broader nature of parental responsibility in Shared Parenting arrangements facilitates a natural transparency of care, given that the child is in frequent contact with both parents and the respective extended families.

This ongoing transparency of care optimises the safety and welfare of the children involved, by reducing the possibility of abuse occurring without one of the parents detecting it at an early stage.

These natural checks and balances are unfortunately less prominent (and in many cases non-existent) in Sole Custody arrangements, providing for greater opportunities for child abuse to occur undetected and for greater periods of time, as reflected in the statistics on child abuse.

  1. The 2006 Shared Parenting laws have resulted in greater risks of family violence for mothers and children.

 NOT TRUE. To the parents involved, Shared Parenting arrangements are no different to two-day per-fortnight arrangements in terms of the mechanics of contact and change-overs. Shared Parenting does not in any way increase the time that separated parents need to spend with each other, nor need it involve any physical or proximate contact between the parents.

According to the Australian Institute of Family Studies evaluation of the 2006 Family Law Reforms, a large scale government initiated study into the performance of these reforms, the study found that there was no link between the 2006 Shared Parenting amendments and any increased risk of domestic violence or assault against women and children.

In fact it has been argued that these laws have to a great extent “taken the heat out” of the most vexed issue in separation, namely that of a child’s residence, precisely because of the more balanced and child-centric approach to such determinations.

  1. Shared Parenting reduces Child Support commitments, which is why many fathers seek Shared Parenting arrangements.

 NOT TRUE. Such comments underlie an element of gender arrogance in suggesting that only mothers can love their children enough to want to spend time with them. To be further made by people purporting to be feminists is beyond belief.

Nonetheless, the allegation is often made and is completely erroneous because Shared Parenting arrangements are typically more expensive for the average father than a non-custodial parenting arrangement.

Shared Parenting involves a duplication of investments, including new bedroom/s, new wardrobe of clothing, computers, furniture, toys and many other expenses, involving substantial capital costs.

Shared Parenting also shifts a greater proportion of the day to day costs to the fathers.

Many fathers in Shared Parenting arrangements have also reported a reduction in their overall working hours to accommodate their Shared Parenting arrangement, thus reducing their income.

The overall impact is that Shared Parenting arrangements provide for greater financial investment in the support of their children by fathers, as well as greater emotional, psychological and other forms of support.

The child/ren as a result get more overall support from their fathers, not less.

Single mothers on the other hand do receive less direct financial support from the respective fathers with Shared Parenting arrangements, which may go some way in explaining the worldwide campaigns by single mothers’ groups against Shared Parenting initiatives.

  1. Children in Shared Parenting arrangements live a Ping-Pong lifestyle.

NOT TRUE. Shared Parenting arrangements are no different to two-day per-fortnight arrangements in terms of the frequency of change-overs. Children in Shared Parenting arrangements typically change-over their residence twice a fortnight. Children seeing their father only two days a fortnight also change-over their residence twice a fortnight.

The frequency of change-overs is IDENTICAL in both cases.

  1. The 2006 Shared Parenting Family Law amendments are a “one-size fits all” arrangement.

 NOT TRUE. The 2006 Shared Parenting laws allow for a broad range of parenting arrangements, from no contact at all up to 7 days per fortnight with each parent, and everything in between. As evidenced by the Family Court’s Shared Parental Responsibility Outcomes report, there is nothing “One Size” about these new laws, which explains why the report was so difficult to compile in the first place.

Conversely, the pre-2006 Sole Custody laws mandated an outcome which was almost universally a “one size fits all” arrangement, that being Sole Custody to the mother and visitation to the father for two days per fortnight. This “standardised” arrangement was the fixed outcome in up to 90% of all child custody Court outcomes prior to 2006.

So let us be clear here, the pre-2006 Sole Custody laws were the entrenched, inflexible “one size fits all” arrangement, whereas the 2006 Shared Parenting amendments opened the gates to a broad range of outcomes, all depending on the unique circumstances of each case.

  1. The Family Law Pendulum has swung too far in the other direction, and now the system favours fathers.

 NOT TRUE. The chances of a father getting any type of meaningful parenting arrangement is still a minority outcome in the Family Courts.

Only 15% of Court outcomes result in an equal time arrangement, whereas only 14% result in some form of minority shared care arrangement. For a large number of Court outcomes however the result is still little or no contact for the father.

shared-parenting-australiaThese outcomes in no way support the myth that family laws in Australia favour fathers, indeed it only re-enforces the significant cultural bias that fathers continue to face across the complete spectrum of family, child and domestic regulations in this country.

The sad truth is that many of the institutions that have been set up to protect children’s interests in this country are driven by politicised mores aimed at promoting the welfare of women almost exclusively, relegating the often very real needs of both men and children. It is precisely because of this cultural abhorration that new laws have been required.

It should be emphasised that the danger of not playing the role of impartial adjudicator, of not assessing the facts on their merits, cannot be justified, as some do, as a re-balancing effort, as a minor inconvenience against men to bring equality back into the equation.

This practice is unethical and immoral, and costs lives, the innocent lives of many men and many children, lives that could have and should have been saved.

As sadly witnessed by the Dean Shillingsworth murder (boy in the suitcase), unquestionable signs of imminent danger were completely ignored by Child Protective Services for ideological, gender based reasons.

In this instance the child was placed back into sole care with his mother, despite the mother threatening to kill the child, and despite warnings from the family. The child as a result was murdered by his mother.

According to the NSW Ombudsman report into this murder, he lamented that the child protection authorities were more concerned about the welfare of the mother than her children. He complained that “because their focus was on the mother they lost sight of the risk issues for the children.”

The government in this instance apologised unreservedly to the family for the errors that brought about the murder of this innocent 4 year old child, but unfortunately this cultural under-pinning still pervades the system, at every level.

The sad truth is that the inherent bias in support of women by the System, at the expense of men and children, is just as pervasive as ever, despite the 2006 legislated family law reforms.

  1. Australia’s Shared Parenting laws disadvantage Single Mothers

 NOT TRUE. Australia’s Shared Parenting laws are progressive laws that provide greater independence, support and employment opportunities to all parents after separation, in equal measure, regardless of gender.

Parenting is a very demanding and onerous role. Single parenting is all the more difficult when all responsibilities revolve around one person. Single mothers in general forgo employment and other opportunities in order to satisfy their sole parenting responsibilities.

Shared Parenting provides a balanced approach to the workload of parenting, providing each parent a regular opportunity to periodically focus on their needs, whether that be employment, education, friendship or relaxation. It is also a progressive development that will empower women to become more than just mothers, and provide women an opportunity to fully engage in the work force to the same extent as men.

It may be a valuable suggestion to those people protesting for equal pay for women in Australia, to take a stronger look at women’s groups themselves as the culprits denying women the opportunity to fully engage in the workforce to the extent that men. If women genuinely want the same employment opportunities and rewards as men, then they should be embracing Shared Parenting laws, not bitterly opposing them. Anything less than this is shear hypocrisy.

One should always remember that Shared Parenting is an extension of the original but now days forgotten feminist mantra that both men and women are equal, and their role in society should not be defined by their gender.

It is of course one of the great ironies that feminist organisations have become one of the most relentless forces against Shared Parenting initiatives across the globe.

  1. Australia’s Shared Parenting laws focus on Parental Rights and not on the best interests of the Child

 NOT TRUE. The 2006 Shared Parenting amendments are about protecting a child’s natural right to a meaningful relationship with both parents.

The previous laws have created a generation of fatherlessness in Australia that is widely accepted as being of significant disadvantage to the welfare of children.

The legislation in this regard makes absolutely no reference to parental rights, but conversely does highlight the paramount consideration of the law to be the child’s best interests.

For a shared or equal parenting time arrangement to be ordered, the Court must first consider whether such an arrangement would be in the best interests of the child, and whether such an arrangement is reasonably practicable. In all cases the Court is required to regard the best interests of the child as the paramount consideration.

This is how the LAW is stated, so clearly those people saying otherwise either have not read the law, have not sat through a family court proceeding, or are simply grasping at straws to condemn a system that they oppose for reasons other than what they are willing to say publicly.

  1. The Australian public does not support Shared Parenting

 NOT TRUE. Shared Parenting laws in Australia have been and continue to be overwhelmingly supported by the public, as evidenced by repeated surveys, polls and government initiated studies.

In fact if the public’s view was to be taken into full account, Australia’s Shared Parenting laws would be strengthened to include a legislated presumption of shared care.

As it stands, on average between 70% to 90% of Australians have consistently provided unwavering support for shared parenting laws in this country, and only a vocal minority with vested interests, including lawyers, feminists and single mothers groups and have opposed such laws.

Other ‘Shared Parenting’ News on Family Law Express

Airport Watch List: Protect your Child from International Abduction Sat, 13 Aug 2016 08:57:33 +0000 ]]> Airport watch list, child recovery, child relocation, Child Alert, Australian Federal PoliceGrowing numbers of Australians have “international” ties, either through dual citizenship or family members living overseas. With these ties, there is an increasing risk that following separation, one parent will relocate overseas with the children of the relationship.

Recent examples include the case of the “Italian children” where a father sought to have his three daughters returned to him in Italy, and the more recent case involving the 60 Minutes news team travelling to Lebanon to recover children removed from Australia.

These cases have dominated headlines, and more and more parents are taking steps to ensure that their children can’t be removed from Australia post-separation.

Parents can make a Child Alert Request with the Australian Passport Office of the Department of Foreign Affairs and Trade. The Alert warns the Department that there may be circumstances that need to be considered before issuing a passport to your child.

The form can be completed online but must also be printed and submitted to the Australian Passport Office in a hard copy format with your signature.

A Child Alert doesn’t prevent your child from travelling if they already hold an Australian passport or a travel document issued by another country. You will need to contact the Embassy, High Commission or Consulate in Australia of that particular country to find out if you can apply to stop a foreign passport being issued for your child. Contact details for foreign government representatives in Australia can be found online.

If your child has a valid Australian passport, you may need to place their name on the Australian Federal Police Airport Watch List, which prevents a child whose parents are involved in Family Law proceedings from being removed from Australia without the Court’s consent.

To place your child’s name on the List you need to make an Application to the Family Court of Australia or Federal Circuit Court of Australia. The child’s name will be registered with the Australian Federal Police at all international departure points, and if a parent attempts to take the child out of the country, the child will be stopped at the airport and prevented from leaving.

For more information about this see our blog When a wing and prayer won’t cut it – Travelling overseas with children.

Related Family Law Judgments

FULL REPORT RELEASED: Independent Study of Australia’s Independent Children’s Lawyers Thu, 12 Nov 2015 20:15:23 +0000 ]]>

Release of the Family Law Express Independent Children’s Lawyer (ICL) study: Full Report – released 13th November, 2015

In contrast to the generally positive findings of the Australian Government’s 2013 AIFS Independent Children’s Lawyer (ICL) Study, the findings of the Family Law Express Independent Children’s Lawyer (ICL) study  entitled “Neither Seen Nor Heard: Australia’s Child Protection Conundrum” has exposed the undeniably arduous state of current ICL practice in this country.

independent childrens lawyer surveyThe Family Law Express study was primarily comprised of a detailed questionnaire, designed with a distinct emphasis on robust and meaningful representation.

Of enormous significance and as a point of distinction with the AIFS research, Family Law Express focussed on the experiences of the affected parents, as opposed to the views of lawyers, judges and other family law professionals, who it could be argued would have been denied exposure to the ultimate consequences of the ICL practices in question, amongst other obvious deficiencies.

The study findings have exposed many flaws with regard to current enforcement of ICL standards and guidelines, as well as funding, education, and ICL practice more generally. The respondent parents expressed dissatisfaction and a lack of confidence in ICLs repeatedly through-out the study, raising obvious questions as to the extent of the discord between the perceptions of professionals and the core subjects themselves.

Given the principle responsibility of an ICL is to improve the outcomes for children in family law disputes , Family Law Express have attempted to address the incongruence in the AIFS study where only 6% of research participants were parents, carers or children involved with an ICL.

Given that 94% of the research participants in the AIFS study were professionals within the Australian legal system, Family Law Express have added a different and essential perspective to the ICL debate, that of parents who, alongside their children, are most closely affected by the involvement of ICLs in family law disputes.

Amongst the more surprising of the Family Law Express’ findings, only 8% of research respondents believed that the ICL best represented the interests of their child or children. In a further finding, 64% of respondents ranked the ICLs instrumentality at just one on a scale of one to ten where one represented no importance at all. Not only do these findings reveal problems with current ICL practice but they undermine the principles upon which ICL practice is premised.

Just as surprising, an overwhelming 79% of respondents expressed extreme dissatisfaction with the overall performance of the ICL. This can be attributed to a number of factors; to the poor preparation of ICLs indicated by 64% of respondents; to the 76% of respondents and their children who were not appropriately informed of the ICLs role upon appointment; to the fact that 91% of respondents and their children were not regularly updated of the ICLs progress; or to the gender bias felt by 71% of respondents. These findings are compounded by disparities in ICL funding arrangements and questions surrounding the adequacy and substantiality of current ICL training and accountability measures.

This study suggests that reform in the practices and accountability of ICLs is not merely required, but is in fact necessary and urgent. It is necessary not only to ensure that the law remains applicable and relevant to current and changing contexts, but in terms of ICL practice, law reform is necessary to the wellbeing and future of countless Australian children.

And in an era of heightened awareness of child safety in the context of family disputes, reform of the practice of ICLs is a constructive and worthwhile measure that can be quickly undertaken, but only if the political will is there.

Read the Full Report here.

Hearsay – What is it and when can you use it? Mon, 19 Oct 2015 19:21:44 +0000 ]]> hearsay, evidenceHearsay is often colloquially referred to as ‘he said, she said’.

It is a statement being used to prove the truthfulness of something based on the fact that somebody else said it was true.

If you were in the Family Court for instance, and you said “I saw John read his daughter a bedtime story”, this would not be hearsay because you are talking about something you personally witnessed.

However, if you said “Jenny said that John read his daughter a bedtime story”, it would be hearsay because you are trying to prove that John read his daughter a bedtime story based on the fact that Jenny told you it happened.

There are two types of hearsay; first-hand hearsay which is inadmissible unless it falls under an exception and second-hand hearsay which is always inadmissible.

First-hand hearsay is defined as “a representation that was made by a person who had personal knowledge of an asserted fact.” 1

In other words, first hand hearsay is when you’re talking about a statement, note or other communication where the person who communicated the information actually saw, heard or experienced what happened.

In our example scenario, the “asserted fact” is that John read a bedtime story to his daughter and the statement was made by Jenny who had “personal knowledge” since she was the one who saw John read the story. This is first-hand hearsay.


Second-hand hearsay is more remote than this.

If you say to a family report writer “Jenny said that John read the bedtime story”, and the family report writer then gave evidence in court by saying “Someone told me that Jenny said that John read to his daughter”, this would be second-hand hearsay.

This is because the “representation” is not what Jenny said to you, but what you said to the family report writer. Since you didn’t have “personal knowledge” of whether or not John read to his daughter, it is second-hand hearsay.

Why is it generally inadmissible?

The courts favour ‘original evidence’, which means hearing what happened from people who actually experienced the event in question. The idea behind this is that it is the closest the judge can get to actually experiencing what happened and the other side has the opportunity to cross-examine the witness and the evidence they are presenting.

For example, if you were a witness in the Federal Circuit Court and you said “I saw him read to his daughter”, that would be original evidence because it is what you saw and you are able to be cross-examined. Your statement can be used as evidence that the father did indeed read a bedtime story to his child.

If you were in court and said “My friend Jenny said that she saw him read to his daughter”, this would be hearsay evidence because you didn’t personally witness the father reading to his child.

Your statement in this case cannot be used to prove that the father read a story to his child. In a situation where this is the case, it would likely be Jenny that is asked to be a witness in court since she is the one who claims to have actually witnessed the father reading to his child.

What are the exceptions to admissibility?

  1. When it is being used for another purpose. 2 Hearsay is generally inadmissible to prove that the asserted fact was true. So we can’t use what Jenny said to you to prove that John read to his daughter. However, your statement might be admissible for another purpose (e.g. a defamation claim) not to prove that John read to his daughter, but to prove that Jenny said that John read to his daughter.
  2. If the person who made the claim is unavailable. This applies to both civil proceedings 3 and criminal proceedings. 4 Unavailable to give evidence is defined to include that all reasonable steps have been taken to attempt to find the person and secure their attendance without success.
  3. If calling the person who had personal knowledge would cause undue expense or delay. This applies to civil proceedings 5
  4. If the maker of the representation is unavailable for criminal proceedings. In this situation, the hearsay evidence must be presented by someone who saw, heard or otherwise perceived the representation being made and the court must have reason to believe that the circumstances of the case make it highly probably that the representation is reliable. 6
  5. If the representation is about the person’s health, feelings, sensations, intention, knowledge or state of mind. 7
  1. Evidence Act s62
  2. Evidence Act s60
  3. Evidence Act s63
  4. Evidence Act s65
  5. Evidence Act s64 
  6. Evidence Act s65 
  7. Evidence Act s66A 

How to File a Subpoena For Medical Records Tue, 13 Oct 2015 14:50:27 +0000 ]]> subpoena-medical-recordsIn family law disputes, it might be necessary to subpoena medical records of either the opposing party or a third party.

Seeking to issue a subpoena can be a complicated process, and is regulated by court rules of the relevant courts.

This ‘how to’ guide seeks to provide a step-by step guide to assist a self-represented litigant who want a court to issue a subpoena for medical records.

What is a subpoena?

A subpoena is a legal document issued by the court at the request of a party. A subpoena compels a person to produce documents or give evidence at a hearing or trial. There are 3 kinds of subpoena:

  1. Subpoena for production;
  2. Subpoena to give evidence; and
  3. Subpoena for production and to give evidence

This guide will deal mostly with the subpoena for production (1), though, it might be necessary to subpoena a medical expert to give evidence at a hearing.

What constitutes medical record?

Medical record means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person’s medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical treatment1

Before you apply

It is important to note that the Family Court of Australia will not issue a subpoena for a self-represented litigant unless a registrar has given prior approval.2 In such a case, it is necessary to prepare a letter to support the subpoena.

How to apply

Step 1: Fill out the form You will need to complete the form titled Subpoena which is obtainable from Court registries or downloadable from the court websites:

  1. Family Court
  2. Federal Circuit Court
  3. Family Court of Western Australia

Note: Make sure that the form that you are filling out has been approved by the court in which you are litigating.


Download Sample Subpoenas

When completing the subpoena form, keep in mind:

■   –       A subpoena must identify the person to whom it is directed by name or by description or office or position. If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation.

■   –       A subpoena for production must identify the specific documents to be produced. For example: “Any records, notes or reports or any other written material held by any facility of X Area Health Service, including but not limited to Hospital X relating to person X and relating to an alleged sexual assault on 1/01/2014.”

■   –       You cannot request the issue of a subpoena requiring the production of a document in the possession of the Court or any other Court. To seek a document in the possession of a Court you have to give written notice to the Court.

Step 2: File the Subpoena Once you have completed the subpoena, file it at the Court. You will need to file the original and at least two copies. You will need to ensure that you have enough copies for service on each other party including the independent children’s lawyer if one has been appointed. The Court will keep the original subpoena and give you back the copies sealed with the Court’s stamp.

Step 3: Serve the subpoena

3.1 Mode of service There are differing requirements for service in different jurisdictions.

  • –    Family Court of Australia: The Court requires that a person who requested the subpoena to be issued must arrange for it to be personally handed to the named person.
  • –    Federal Circuit Court of Australia: This court does not require subpoenas for production only to be personally handed to the named person. Subpoenas for production only may be served on the person to be subpoenaed by ordinary service. Subpoenas to give evidence or subpoenas to give evidence and produce documents must be personally handed3
  • –    Family Court of Western Australia: This court requires all subpoenas to be personally handed to the defendant.

3.2 Time of Service

  • –    In the Family Court, the issue of a subpoena for production must be served 7 days before the court date.4
  • –    In the Federal Circuit Court, a subpoena requiring production must be served at least 10 days before production under the subpoena is required.5

3.3 Brochure When serving the subpoena on the person subpoenaed, and other parties or interested person, you should also provide them with a copy of a brochure which gives the named person information about their rights and obligations. These brochures can be obtained from the relevant Court registries or downloadable from court websites.

3.4   Notice

  1. Family Court of Australia
  2. Federal Circuit Court of Australia
  3. Family Court of Western Australia 

3.5   Conduct Money At the time of service of a subpoena, conduct money should be provided to the named person. If you do not provide this money, the named person is not required to comply with the subpoena. For a  subpoena for production, you must give the named person conduct money sufficient to meet the reasonable expense of complying with the subpoena. This includes the cost of identifying the documents, copying and collating the documents required. Minimum conduct money for the production of documents will be at least $10 or other sum ordered by the court or agreed to by the parties.

Special Rules for subpoenas for production of documents

In some cases, all parties may be automatically permitted inspect documents produced under a subpoena without the need to attend a court date. 6 This can only occur if:

  • –    The subpoena is issued more than 21 days before the court date.
  • –    The named person and all other parties including the independent children’s lawyer are served with;
    • –    The subpoena;
    • –    A written notice that the person requesting the subpoena intends to rely on this provision at least 21 days before the court date.
    • –    You file an affidavit of such service at least seven days before the court date.
    • –    The named person produces the medical records more than seven days before the court date and does not object to any party inspecting the documents.
    • –    No other party to any party inspecting or copying the documents by ten days prior to the court date.

Note– in the Federal Circuit Court an inspecting party will not be able to photocopy medical records. 7

Objection to produce documents

A person may object to the production of the documents required by the subpoena for various reasons including:

  1. The documents are irrelevant;
  2. The documents are privileged;
  3. The terms of the subpoena are too broad.

Such a person may seek an order for a subpoena to be set aside.

Inspection of Medical Records

In the Federal Circuit Court, the person whose records have been produced may give notice to the Court that they want to inspect those medical records in order to decide if they wish to object to their inspection. 8

If they object to their records being inspected, they are allowed to file their notice of objection within 7 days after the date for production in the subpoena. In this case, you, or any other party or interested person, will not be permitted to inspect the medical records until the later of 7 days after the date for production, or the hearing and determination of any objection.

  1. Federal Circuit Court Rules 2001 (Commonwealth) s 15A.
  2. Family Law Rules 2004 (Commonwealth) Reg 15.18.
  3. See Division 6.3 of the Federal Circuit Court Rules 2001(Commonwealth) for more information on ordinary service.
  4. Family Law Rules2004 (Commonwealth) 15.28(1).
  5. Federal Circuit Court Rules(2(Commonwealth) Reg.15A.04(3).
  6. See Division 15.30 of the Family Law Rules2004 (Commonwealth).
  7. Federal Circuit Court Rules 2001 (Commonwealth) Reg 15A.13(2)(b).
  8. Federal Circuit Court Rules 2001Reg 15A.14.

How to make a complaint against your Solicitor Wed, 23 Sep 2015 02:56:45 +0000 ]]> olsc-complaintsHave you ever had serious concerns with the way your solicitor has dealt with your case? For instance, do you believe your solicitor has not respected your confidentiality, or do you believe that your solicitor has been overcharging you?

If so, have you ever thought of filing a formal complaint against the solicitor? Interested in finding answers to these questions? This paper will provide you with the answers.

In the 2008 Bar Association of Queensland Annual Report, John Briton the Legal Services Commissioner stated that there is an average of over 1200 formal complaints a year against a legal practitioner or about one in every six Queensland legal practitioners receiving a written complaint.

If you believe that your legal practitioner has performed unsatisfactorily under his professional duty then you have the right to file a complaint against him. Provided below are details on the avenues available to lodge a complaint against your legal practitioner and how to go about the processes of lodging a complaint. There is a respected body that deals with the complaints against legal practitioners in each state and territory, thus this has to be taken into account, however each statutory institution performs similar roles and investigates similar matters or issues in regards with unprofessional actions of a legal practitioner.

Who is a legal practitioner?
A legal practitioner can be a lawyer certified to work as a barrister or solicitor. In some states, such as Queensland, law-practicing employee also counts as a legal practitioner. The lawyers’ special responsibility is to give their best service to their client with professionalism, as well as their special duty to the court.

Where do I go to file a complaint against my legal practitioner?
Each state and territory has different legal institutions to investigate complaints filed against a legal practitioner. These institutions were created under statute and must treat each case in a fair and independent manner. All these statutory institutions undertake the same job and provide the same services to clients who want to lodge a complaint against their legal practitioner. Below is a list of the different institutions in each state and territory:

  • • New South Wales: The Office of the Legal Services Commissioner – Inquiry Line: 1800 242 958
  • • Victoria: Legal Services Commissioner – Inquiry Line: 1300 796 344
  • • Queensland: Legal Services Commissioner – Inquiry Line: 1300 655 754
  • • South Australia: Legal Practitioners Conduct Board – Inquiry Line: (08) 8212 7924
  • • Western Australia: Legal Profession Complaints Committee – Inquiry Line: (08) 9461 2299
  • • Tasmania: Legal Profession Board of Tasmania – Inquiry Line: (03) 6226 3000
  • • Australian Capital Territory: Law Society of the ACT – Inquiry Line: (02) 6247 5700
  • • Northern Territory: Law Society of the NT – Inquiry Line: (08) 8981 5104

What would be my underlying reasons to file a complaint against my legal practitioner?
If you believe that your case falls within the scope of a “consumer dispute” or “conduct complaints” then you have reasons to complain against your legal practitioner. Under the Legal Profession Act 2004 (NSW), “consumer disputes” may be in regards with delays, costs, poor communication or rudeness or a release of your documents or property (liens). A “conduct complaint” is associated with “unsatisfactory professional conduct” or a “professional misconduct”, this could be a threatening or abusive behaviour, failure to comply with an undertaking, poor advice or representation, serious delay, non-disclosure of costs, minor breach of the Solicitor’s Rules or confidentiality.
A “professional misconduct” includes gross overcharging, conflicts of interest, acting contrary to instructions, misleading or dishonest conduct in or outside court and a misappropriation of trust money, conduct outside the law practice such as conviction of a serious criminal offence, a tax offence or an offence involving dishonesty or being qualified from managing or being involved in the management of a corporation.

The statutory institutions are not able to deal with complaints against courts staff, judges or magistrates or complaints against paralegals, law clerks, and individuals practicing without a practicing certificate, or about migration agents and licensed conveyancers.

How can I file a complaint against my legal practitioner?
Every complaint is required to be firstly assessed by the respected institutions in the state or territory you are in. If mediation between you and your legal practitioner is capable of resolution then this will be the first step that the institution will recommend to be done. This is a process where an officer from your institution will hear your side of the complaint and also hear your legal practitioner’s story in order to bring about a more practical solution where possible. This will be a confidential process, but if ever during the process, a more serious problem will occur the institution will investigate this further. If your complaint is with regards to professional misconduct, disciplinary action has to be taken by the institutions and a serious “investigation” is required.

For an easier process, it is advisable that you call your respected institution’s Inquiry Lines (as provided above) to help and clarify questions you have about filing a complaint against your legal practitioner. To lodge a formal complaint the complaints must be in writing and must be signed by you or a person on your behalf. The name of the legal practitioner that you want to make a complaint against shall be written on your formal complaint. Each institution also provides a complaint form that can be downloaded from each of their websites or alternatively a letter with the details of your complaint can be sent to the institution in your state or territory. Any legal and relevant documents that you can provide to support your complaint must be photocopied. If you are acting on behalf of another person you must write the name of the person filing the complaint on the formal written document.

If upon completion of the investigation of your complaint the matter was found to be a serious matter, the institution will refer the matter to a more powerful legal service that deals with lawyer’s professionalism such as the Bar Association. In each investigation the legal practitioner being complained about will be given an opportunity to respond to such complaint.

Each state and territory has an online disciplinary registers database for the public’s reference, as required by the Legal Profession Act 2004. This is a list comprising of names of legal practitioners who have been given sanctions due to unprofessionalism. Below are the links to each state’s online disciplinary registers most recent listings.

What other bodies help with the dispute?

In New South Wales, the Law Society of NSW and the Bar Association also decides on formal complaints that clients file against their legal practitioners. If a disciplinary action has to be taken the Law Society Councils of each state review the complaints against solicitors and the Bar Associations reviewthe complaints against the barristers. They are professional bodies that decide on formal complaints that require an undertaking of disciplinary action.

What is a likely hardship that I will face during an investigation process?
A “Caesar against Caesar” notion has been attested when it comes to decision making made by the respected legal services that deals with complaints against legal practitioners. After your respected state’s legal services commission reviewed your case and requires a further investigation against the legal practitioner they will send the matters of complaint to a higher professional body. This could either be the Law Society for solicitors or the Bar Association for the barristers.

The infamous Dr. Haneef’s case is an exemplar of such notion, wherein both his solicitor and barrister have been investigated at different times due to unethical conduct. They were both alleged of leaking substantial information related to the case. The president of the bar association stated that Dr. Haneef’s barrister was a regarded member of the bar and was to be presumed with innocence as he had acted honestly and with the best intentions. The bar association’s president also went to further discuss that the Bar Association does deal with such unethical complaints impartially for the main interest of the public. This is one issue in regards with filing a complaint against a legal practitioner, as eventually it is their own respected body that deals with their own complaint. A notion of bias is usually imputed in such process, as Caesar will not fight against himself.

Is there a time limit for making a complaint?
You have three (3) yearsfrom the happening of the alleged conduct to file a complaint against your legal practitioner. However, “out of time” case can be an exception if the Legal Services determine that “it is just and fair to do so having regard to the delay and reasoning of such delay” or if the complaint “concerns professional misconduct and that it is in the interest of the public to investigate such complaint”.

Never be hesitant in filing a complaint against your legal practitioner if you truly feel that you have been given an unprofessional conduct. There are avenues ready to give you a hand and guide you through the process of being heard and actually getting a solution to a legal issue. This is a matter of obtaining justice and your case does matter.

How to Remove a Judge or/and an ICL from Proceedings Wed, 02 Sep 2015 18:15:56 +0000 ]]> gavel-family-courtThe adversarial common law system in Australia, by its very definition, often delivers results that are far from what was expected, even to impartial third parties.

The counter-balance to this uncertainty is the hierarchical layers of Courts, providing avenues for appeals.

Sometimes however issues arise in family law proceedings in Australia with regard to the performance of the judicial officer or the Independent Children’s Lawyer, which cannot wait for the sometimes long-winded appeals process, and require immediate action or remedy.

This paper will consider the procedure for removing a judge and an Independent Children’s Lawyer (ICL) from proceedings.

As the procedure for removing a judge varies considerably from removing an ICL, I will deal with them on a separate basis.

Removing a judge from proceedings

In certain cases a party to litigation might conclude that a judge is not fit to preside over proceedings and should be removed. The grounds for removing a judge from proceedings, however, are narrow and restrictive. A judge can only be disqualified from a matter on the grounds of bias.

Governing Principle

The principles of natural justice require that a decision maker, ie. a judge or a magistrate, must approach a matter with an open mind that is free from pre-judgment or prejudice. In other words, the decision maker must be free from bias.

A party who suspects that a judge or a magistrate is biased may seek an application to have the decision maker removed from the proceedings.

Types of Bias

There are two types of bias, actual bias and apprehended bias. Actual bias is available only if a party can prove that the decision maker’s minds is closed and will not be swayed by the evidence in hand. On the other hand, apprehended bias (also known as apparent bias) only requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.

Most cases concern apparent bias, as opposed to actual bias. This is partly because apparent bias is much easier to prove as it does not require an applicant to establish the actual state of mind or attitude of decision-makers.The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”1 affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ]

If a party reasonably suspects that the judge or magistrate’s impartiality is affected his actual or apparent bias, then the party can apply to have the judge removed on this ground.

Instances of Bias

It is not always easy to know when the judge or magistrate should be disqualified on the grounds of bias. Case law offers some helpful guidance to parties:

  1. The fact that the judge, or a close family member, holds shares in a litigant party is normally not a ground for disqualification, unless the value or income stream of the shares could be affected by the outcome of the litigation2:
  2. The fact that the judge has a direct pecuniary interest in the proceedings is a ground for disqualification3:
  3. The fact that the trial judge has expressed views in previous decisions, or in extra-judicial publications in relation to the kind of litigation before the court, which may have questioned an existing line of authority is not normally a reason for disqualification unless those views suggest that the judge could not hear the case with an “open mind”.4 1 All ER 65. ]
  4. The fact that the judge is related to a party, or to one of the party’s legal representatives- including an intimate relationship, at least where that legal representative is actually involved in the litigation, will normally be a ground for disqualification 5:
  5. Where the judge was married to a party, or to one of the party’s legal representative, and that relationship has subsequently broken down. What is a reasonable period of disqualification following the end of the relationship will depend on the facts of the case;

How to make an application

A party can make an application for disqualification without filing a formal motion.6 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539. ]

Traditionally, the question of disqualification has been dealt with in an informal way before the judge against whom objection is, or might be, taken. A party can seek to have the judge disqualified by drawing the issue to the attention of the registrar with appropriate adjustments being made to the listing of the matter7. In such cases, the issue may be resolved without the need for it to be ventilated in open court.

If a party is unable to resolve the matter informally, then the party should file an application seeking the disqualification of the judge (also known as recusal application). Generally an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts.

It should be noted that there is no uniform procedure for raising the issue; nor a uniform method for informing the court as to the facts supporting a request for disqualification in circumstances where that might be regarded as necessary. The matter is essentially unregulated and judges have increasingly invited the parties to make submissions, taken evidence and delivered reasons.8


It is important for a timely objection to be made by a party if it is considered that there is a serious question as to whether the judge should withdraw. By failing to make a timely objection, the litigant may be held to have waived any objection to the judge hearing and determining the matter.

As waiver may be implied, where a party is making an informal or oral application, it important for an objection to be recorded on the transcript, or noted by the judge if transcript is not taken.

Tender of Evidence

In certain circumstances evidence has been permitted of the existence of a potentially disqualifying interest held by the trial judge in the subject matter of the proceedings. In Clenae Pty Ltd v ANZ9 VSCA 35. ], for example, affidavit material was tendered on the appeal to show the existence of the trial judge’s shareholding in the respondent company.

Who hears the Application?

It is well established that the judge assigned to hear the matter will decide whether he or she ought to disqualify him or herself on the grounds of bias.


A judge or magistrate will not automatically step aside wherever an objection is made. In some cases, the judge or magistrate may refuse an application seeking disqualification. Where a matter is being brought in the Federal Circuit Court or the Magistrate Court of Western Australia, a party can appeal to the Family Law Court where an application for disqualification has been rejected by the primary judge or magistrate.10

However, when a judge of the Family Court, as opposed to a lower court, refuses to disqualify him or herself from the proceedings, then the question of whether that decision is appeal-able is a vexed issue. A refusal by a judge to disqualify him or herself can be relied upon as a ground of appeal in relation to the substantive judgment. Traditionally it has been held that no appeal lies from the rejection of a refusal application; Wentworth v Rogers.

However, the decision in Barakat v Goritsas (No 2) [2012] NSWCA 36 suggests that it will frequently be appropriate to grant leave to appeal where a recusal application has been rejected ‘assuming that the challenge is not patently untenable’.

In any case, a party may seek a writ of prohibition from the High Court against the judge in the Family Court.


Where the judge or a magistrate has refused to disqualify him or herself, a writ of prohibition can be sought against judges of federal courts and inferior courts including the Family Court of Australia.

Thus, in The Queen v Watson; Ex parte Armstrong11the High Court held that prohibition could lie against a judge of the Family Court of Australia prohibiting the judge from hearing an application for dissolution of marriage and ancillary relief where, in all of the circumstances, the parties or the public might reasonably have suspected that the judge was not impartial. The Court held that prohibition should issue on the ground that the parties or the public might reasonably suspect that the judge was not unprejudiced or impartial.

Removing an Independent Children’s Lawyer (ICL)

The procedure for removing an Independent Children’s Lawyer is different and simpler. Under regulation 8.02(1) of the Family Law Rules 2004, a party may apply for the appointment and removal of an independent children’s lawyer by filing an Application in a Case. This application can also be made orally.

The Court will only do this in very serious circumstances, which would include where there is evidence that the lawyer:

  1. -is acting against the child’s best interests
  2. -is not doing the job properly
  3. -is not making independent decisions, or
  4. -has a conflict of interest.12
  1. Johnson v Johnson (2000) 201 CLR 488 at [11
  2. Dovade Pty Ltd v Westpac Banking Corporation and see Ebner v Official Trustee.
  3. Dimes v Proprietors of Grand Junction Canal Pty (1852) 10 ER 301 and Dovade Pty Ltd v Westpac Banking Corporation. 
  4. Timmins v Gormley [2000
  5. Smits v Roach (2006) 227 CLR 423.
  6. Barton v Walker [1979
  7. Melissa Perry, ‘Disqualification of Judges: Practice and Procedure’(2000) Discussion Paper, Australasian Institute of Judicial Administration Incorporated, p 9.
  8. Ibid ix.
  9. [1999
  10. s 94AAA of the Family Law Act 1975.
  11. R v Watson; Ex parte Armstrong (1976) 136 CLR 248. 
  12. Legal Aid Western Australia, ‘Independent Children’s Lawyer (ICL) in the Family Court.