Family Law Express Brief http://www.familylawexpress.com.au/family-law-brief preparing yourself for family court... Fri, 15 Sep 2017 01:35:58 +0000 en-US hourly 1 https://wordpress.org/?v=4.6.8 Same-Sex Parents Who Separate: Who gets the Children? http://www.familylawexpress.com.au/family-law-brief/familylawcourts/precedent/same-sex-parents-who-separate-who-gets-the-children-and-on-what-basis/2798/ Thu, 14 Sep 2017 04:07:21 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2798 ]]> 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 https://www.humanrights.gov.au/sites/default/files/content/human_rights/samesex/report/pdf/SSSE_Report.pdf.
  2. Same-Sex relationships (Equal Treatment in Commonwealth Laws – General Law reform) Act 2008 (Cth) http://www.austlii.edu.au/au/legis/cth/num_act/srticllra2008769/.
  3. Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) http://www.austlii.edu.au/au/legis/nsw/repealed_act/maasra2008506/.
  4. See,Family Law Act 1975(Cth) ss 4, 65D http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/.
  5. Aldridge v Keaton 2009 FamCAFC 229 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html;Re Evelyn (No 2) (1998) 23 Fam LR 73 http://www.austlii.edu.au/au/cases/cth/FamCA/1998/2378.html; Rice v Miller (1993) 16 Fam LR 970 http://www.austlii.edu.au/au/cases/cth/FamCA/1993/87.html.
  6. Aldridge v Keaton 2009 FamCAFC 229, 83 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html.
  7. Aldridge v Keaton 2009 FamCAFC 229, 78 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html.
  8. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) http://www.austlii.edu.au/au/legis/cth/consol_act/flapra2006500/.
  9. Aldridge v Keaton 2009 FamCAFC 229, http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html.
  10. Aldridge v Keaton 2009 FamCAFC 229, 77 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html.
  11. Aldridge v Keaton 2009 FamCAFC 229 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html .
  12. Aldridge v Keaton 2009 FamCAFC 229, 114 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html .
  13. Aldridge v Keaton 2009 FamCAFC 229 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html.
  14. Lusito v Lusito 2011 FMCAfam 55, http://www.austlii.edu.au/au/cases/cth/FMCAfam/2011/55.html.
  15. Aldridge v Keaton 2009 FamCAFC 229, 22 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html .
  16. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) http://www.austlii.edu.au/au/legis/cth/consol_act/flapra2006500/ .
  17. Goode & Goode 2006 FamCA 1346 10 http://www.austlii.edu.au/au/cases/cth/FamCA/2006/1346.html .
  18. Family Law Act 1975 (Cth) s65D http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65d.html .
  19. Family Law Act 1975 (Cth) s 65B http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s64b.html.
  20. Family Law Act 1975 (Cth) s 60CA http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60ca.html .
  21. See e.g. Barnham& Geyer 2013 FCCA 1911 http://www.austlii.edu.au/au/cases/cth/FCCA/2013/1911.html .
  22. Barnham & Geyer 2013 FCCA 1911 60  http://www.austlii.edu.au/au/cases/cth/FCCA/2013/1911.html .
  23. Family Law Act 1975 (Cth) s 60CC(2)(a) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html .
  24. Family Law Act 1975 (Cth) s 60CC(2)(b) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html .
  25. McCall & Clark 2009 FamCAFC 92 http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/92.html .
  26. B& B 1997 FLC 92-755.
  27. Family Law Act 1975 (Cth) s60CC(2A) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html .
  28. Family Law Act 1975 (Cth) s60CC(3) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html .
  29. Family Law Act 1975 (Cth) s 61DA http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61da.html .
  30. Family Law Act 1975 (Cth) s 61DA(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61da.html .
  31. Family Law Act 1975 (Cth) s 61DA(4) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61da.html.
  32. Family Law Act 1975 (Cth) s 65DAA http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65daa.html .
  33. MRR v GR 2010 HCA 4 http://www.austlii.edu.au/au/cases/cth/HCA/2010/4.html.

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10 Common Misconceptions about Australia’s Shared Parenting Laws http://www.familylawexpress.com.au/family-law-brief/children/childcustody/sharedparenting/10-common-misconceptions-about-australias-shared-parenting-laws/3111/ Mon, 05 Sep 2016 06:24:06 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=3111 ]]> 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


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Airport Watch List: Protect your Child from International Abduction http://www.familylawexpress.com.au/family-law-brief/children/childabduction/airport-watch-list-protect-your-child-from-international-abduction/3097/ Sat, 13 Aug 2016 08:57:33 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=3097 ]]> 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


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FULL REPORT RELEASED: Independent Study of Australia’s Independent Children’s Lawyers http://www.familylawexpress.com.au/family-law-brief/complaints/complaints-against-lawyers/full-report-released-independent-study-of-australias-independent-childrens-lawyers/3087/ Thu, 12 Nov 2015 20:15:23 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=3087 ]]>

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.


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Hearsay – What is it and when can you use it? http://www.familylawexpress.com.au/family-law-brief/legal-proceedings/legislation/evidence-act-1995-cth/hearsay-what-is-it-and-when-can-you-use-it/2903/ Mon, 19 Oct 2015 19:21:44 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2903 ]]> 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.

is-it-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 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s62.html.
  2. Evidence Act s60 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s60.html.
  3. Evidence Act s63 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s63.html.
  4. Evidence Act s65 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s65.html.
  5. Evidence Act s64 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s64.html. 
  6. Evidence Act s65 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s64.html. 
  7. Evidence Act s66A http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s66a.html. 

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How to File a Subpoena For Medical Records http://www.familylawexpress.com.au/family-law-brief/evidence/subpoena/how-to-file-a-subpoena-for-medical-records/2370/ Tue, 13 Oct 2015 14:50:27 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2370 ]]> 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.

Sample-Subpoena-Medical

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.

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How to make a complaint against your Solicitor http://www.familylawexpress.com.au/family-law-brief/legal-proceedings/legalfees/how-to-make-a-complaint-against-your-solicitor/2328/ Wed, 23 Sep 2015 02:56:45 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2328 ]]> 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.


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How to Remove a Judge or/and an ICL from Proceedings http://www.familylawexpress.com.au/family-law-brief/legal-proceedings/legislation/family-law-act-1975-legislation/how-to-remove-a-judge-orand-an-icl-from-proceedings/2608/ Wed, 02 Sep 2015 18:15:56 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2608 ]]> 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

Waiver

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.

Appeal

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.

Prohibition

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.

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Audio Recordings as Evidence in Family Court Proceedings http://www.familylawexpress.com.au/family-law-brief/evidence/electronic-surveillance/audio-recordings-as-evidence-in-family-court-proceedings/2682/ Sun, 30 Aug 2015 02:44:17 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2682 ]]> audio-recording-device-telephoneIn admitting any evidence in Court parties must remain mindful that through doing so they are seeking to persuade the Court of a particular fact. More specifically, there are three key issues that parties should consider before producing evidence.

  • Firstly, parties should consider how to present to the Court evidence of the fact that they are claiming.
  • Secondly and very importantly, parties need to consider whether the evidence is admissible, that is permitted, as evidence in the relevant proceeding.
  • And thirdly, parties should consider the weight and importance of the evidence and its possible implications for the Court’s final decision. 1

Strict statutory rules and well established case law exist to govern the form and use of evidence in proceedings. Recent times have seen increased debate surrounding the use of audio recordings in court proceedings, and particularly, in Family Court proceedings. The key issue with the use of audio recordings in Family Court proceedings is not necessarily their use, but how such recordings were obtained which in turn determines their admissibility as evidence.

The letter of the law: RE audio recordings

Whilst exceptions exist in both State and Federal legislation, the principal rule is that a party must consent to being recorded by a listening or surveillance device. Without such consent, audio recordings are considered to be prima facie illegal, thus rendering the publishing of those recordings illegal, as seen in the recent Family Court case of Huffman v Gorman 2

The legislative basis behind the ruling in Huffman v Gorman and other such decisions lies in the Commonwealth Surveillance Devices Act 2004 as well as in the related statutes of States and Territories3

Such legislation purposed towards the protection of privacy and the facilitation of a cohesive scheme for controlling privacy infringements, prohibits the installation, use and maintenance of listening devices to record private conversations, both to which the person is and is not a party4

In addition, the communication or publication of private conversations, or recordings of private activities, is prohibited5 A lack of consent from other parties to record private conversations classifies the conversations as protected information6 and unauthorised recording as illegal and punishable as a criminal offence.

Exclusionary Provisions: Exceptions to the prohibition of unauthorised recording of private dealings

The above however, is not to say that audio recordings are always illegal and thus completely inadmissible as evidence in Family Court proceedings. Exceptions to the prohibition on recording, communicating and publishing private conversations do exist, but such exceptions, importantly, are limited. The Commonwealth Surveillance Devices Act 2004 and its corresponding State and Territory statutes permit the recording, communication and publication of private conversations in circumstances where all principle parties consent to such, either expressly or impliedly7.

In a situation where only one principal party consents to recording it must be shown that doing so was reasonably necessary for the protection of their lawful interests8. The then communication of such recordings is only acceptable when a party is rationally required to do so to prevent or reduce an imminent risk of serious violence towards a person or threat of substantial damage to property9.

The Commonwealth Evidence Act 1995 builds on this, allowing illegally or improperly audio recordings to be admitted as evidence only when the desirability of its admission outweighs the undesirability of how it was obtained10

Such an issue was raised in the case ofLatham v Latham11, where the benefits of recordings framing the mother as a serious child abuser were seen to outweigh the way they were obtained. A similar position was taken in Tripp v Tripp in which the value of an improperly obtained recording of an interview with a single expert witness prevailed over the circumstance of its recording 12

On the contrary however, there have been a number of recent cases where parties, believing that the benefit of information in audio recordings outweighs their illegitimate obtainment, have presented audio recordings which have been dismissed or have worked against them. In the 2011 case of Hazan v Elias13 a fathers recording of his conversation with a family consultant was held to be inadmissible under the Evidence Act 1995.

Furthermore, the 2012 case Farrelly v Kaling14, whilst circumstances were more severe in that some of the recordings presented were believed to be falsified, the recordings were held to reflect extremely poorly on the respondent father who presented them. It was held that the fathers’ recordings could not be relied upon15, and further, that such recordings raised a number of concerns and questions regarding the fathers’ character.

Whilst it is clear that exceptions to the prohibition of recording, communicating or publishing private and protected conversations exists,  R v Lee16 reminds us that first and foremost, the circumstances in which the initial recording took place will always be relevant to the determination of whether or not there was a reasonable necessity for doing so.

What will the Family Court consider when deciding the admissibility of audio recordings?

In addition to the aforementioned exceptions and considerations, the Evidence Act 1995 outlines the matters that a court may take into account in determining the admissibility of evidence. Among those relevant to family law proceedings, the Family Court may consider the probative value of the evidence17, that is, to what the effect of the evidence in proving a said fact.

The Family Court may also consider the importance of the evidence in relation to the proceeding18, the nature of the subject matter of the proceeding19, and the gravity of the impropriety20 in making the recording.

In relation to the impropriety of the recording the Family Court may consider whether or not it was deliberate or reckless21, whether or not another proceeding is likely to be taken in relation to the improper recording22, and the difficulty of obtaining evidence without the impropriety23 of the recording.

Opinion of Legal Practitioners Regarding Audio Recordings

Members of the legal profession have expressed views regarding the use of audio recording in Family Court proceedings both inside and outside the courtroom. Reflecting on the multitude of cases in which audio recordings are admitted as evidence, Federal Magistrate John Croker has asserted that the use of audio recordings in family law proceedings appears to have gathered support both from parties to proceedings and from their legal representatives24

Despite such support, the use of audio recordings, to Magistrate Croker, arises too frequently and raises serious questions about the behaviour and character of the party who records and presents such evidence25

In a similar vein Senior Counsel Graeme Page attributes little worth to the presentation of audio recordings in court but gives credence to their use by lawyers prior to court proceedings in establishing the nature of events and those involved 26

Other practitioners, rather than expressing strong support or opposition to the use of audio recordings advise that they be approached with caution and that anyone contemplating their use strongly consider the relevant law and its implications27

It should be stressed that these laws are not static and changes are always a possibility.

For instance, the surveillance laws in South Australia may soon drastically change given the Surveillance Devices Bill before the South Australian parliament.

The South Australian Attorney General has stated that the changes to the laws were meant to “stop ordinary citizens bugging” each other and would not apply to recordings of public forums such as speeches, council meetings or Parliament. But, they would apply to private discussions where someone was recorded without consent. 28

This highlights the importance for any parties contemplating the use of audio recordings in Family Court proceedings, to ensure they consult their legal practitioner or a relevant legal body first.

Recent Related News: Secret Phone Recordings Justified to Protect “Legitimate Lawful Interest”

Download Presentation (PPTX)

  1. Australian Law Reform Commission, Uniform Evidence Law, ALRC  Report 102, 2006.
  2. Huffman v Gorman 2014 FamCA 150, at 42.
  3. Listening Devices Act 1991 (TAS); Surveillance Devices Act 1998 (WA); Surveillance Devices Act 1999 (VIC); Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 2007 (NT); Crimes (Surveillance Devices) Act 2010 (ACT); and Surveillance Devices Act 2012 (SA).
  4. Listening Devices Act 1991 (TAS) s 5(1); Surveillance Devices Act 1998 (WA) s 5(1); Surveillance Devices Act 1999 (VIC) s 6(1); Surveillance Devices Act 2007 (NSW) s 7(1); Surveillance Devices Act 2007 (NT) s 11(1); and Surveillance Devices Act 2012 (SA) s 4(1).
  5. Listening Devices Act 1991 (TAS) s 9(1); Surveillance Devices Act 1998 (WA) s 9(1); Surveillance Devices Act 1999 (VIC) s 11(1); Surveillance Devices Act 2007 (NSW) s 11(1); Surveillance Devices Act 2007 (NT) s 15(1); Crimes (Surveillance Devices) Act 2010 (ACT) s 34; and Surveillance Devices Act 2012 (SA) s 8(1).
  6. Surveillance Devices Act 2004 (Cth) s 44. 
  7. Listening Devices Act 1991 (TAS) s 5(3)(a); Surveillance Devices Act 1998 (WA) s 5(3)(c); Surveillance Devices Act 1999 (VIC) s 11(2)(a); Surveillance Devices Act 2007 (NSW) s 7(3)(a); Surveillance Devices Act 2007 (NT) s 15(2)(b)(i); and Surveillance Devices Act 2012 (SA) s 4(2)(a).
  8. Listening Devices Act 1991 (TAS) s 5(3)(b)(i); Surveillance Devices Act 1998 (WA) s 5(3)(d); Surveillance Devices Act 1999 (VIC) s 11(2)(b)(i); Surveillance Devices Act 2007 (NSW) s 7(3)(b)(i); Surveillance Devices Act 2007 (NT) s 15(2)(b)(ii); and Surveillance Devices Act 2012 (SA) s 4(2)(b)(ii).
  9. Surveillance Devices Act 2004 (Cth) s 45(4)(b); Listening Devices Act 1991 (TAS) s 5(2)(c)(i); Surveillance Devices Act 1998 (WA) s 9(2)(c); Surveillance Devices Act 2007 (NSW) s 11(2)(b)(i); andCrimes (Surveillance Devices) Act 2010 (ACT) s 34(6)(b).
  10. Evidence Act 1995 (Cth) s 138(1).
  11. Latham v Latham 2008 FamCA 877. 
  12. Tripp v Tripp 2010 FamCA 691.
  13. Hazan& Elias 2011 FamCA 376. 
  14. Farrelly v Kaling 2012 FMCAfam (26 April 2012). 
  15. Farelly, above n 13, at 225.
  16. R v Lee 2004 NSWCCA 82. 
  17. Evidence Act 1995 (Cth), s 138(3)(a).
  18. Ibid, s 138(3)(b).
  19. Ibid, s 138(3)(c).
  20. Ibid, s 138(3)(d).
  21. Ibid, s 138(3)(e).
  22. Ibid, s 138(3)(g).
  23. Ibid, s 138(3)(h).
  24. Federal Magistrate John Croker, in, Alexander, H. (4 February 2013) ‘Gotcha tapes disliked by court’, Sydney Morning Herald.
  25. Ibid.
  26. Ibid.
  27. See Streeter Law, (10 November 2010), ‘When is covert surveillance illegal and when does it serve a legitimate forensic purpose’, Streeter Law, available from <http://www.streeterlaw.com.au/family-law-cases-1/beware-of-illegal-covert-surveillance >
  28. Laws to restrict secret tapings could hit ordinary citizens <http://www.theaustralian.com.au/news/laws-to-restrict-secret-tapings-could-hit-ordinary-citizens/story-e6frg6n6-1226493178967>.

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Independent Children’s Lawyers (ICL) & Australian Family Law http://www.familylawexpress.com.au/family-law-brief/children/childcustody/child-custody-dispute/independent-childrens-lawyers-icl-australian-family-law/2723/ Thu, 27 Aug 2015 03:23:38 +0000 http://www.familylawexpress.com.au/family-law-brief/?p=2723 ]]> children-and-family-lawAn independent children’s lawyer (ICL) is a lawyer who advocates for the best interests and welfare of a child in relevant proceedings under the Family Law Act 1975 (Cth).

The Family Court will order that a child be represented by an ICL if the child’s best interests or welfare is of significant importance to the proceedings and it appears to the Family Court that the child’s interests ought to be independently represented by a lawyer1.

In the case of Re K Nicholson CJ, Fogarty and Baker JJ set out an extensive list of some circumstances which might call for the appointment of an ICL. Some of the examples they listed included:

  • –          Cases involving allegations of child abuse whether physical sexual or psychological;
  • –          Cases where there is an apparently intractable conflict between the parties;
  • –          Cases where the child is apparently alienated from one or both parents;
  • –          Cases where there are real issues of cultural or religious difference affecting the child;

Cases where the sexual preferences of either or both parents or some other person having significant contact with the child is likely to impinge on the child’s welfare…2

What is their role?

According to the Family Law Courts’ “Guidelines for Independent Children’s Lawyers”, the appointment of an ICL is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child, which states that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”3

“Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”4

In Australia, an Independent Children’s lawyer’s roles are broadly set out in section 68LA of the Family Law Act 1975 (Cth). This particular provision sets out the general natureof what ICLs must do and the specific duties they have.

General Nature of the Role of Independent Lawyers:

  • –          ICLs must form their own, independent view about the best interests of their client and they must act according to that view in any relevant proceedings.5
  • –          If the ICL sees that a particular course of action is in the best interests of their client they must make a submission to the court suggesting the adoption of that course of action.6
  • –          The ICL is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings.7 preceding the instalment of s 68LA in 2006 has clearly stated (consistent with current statute) that the ICL does not necessarily have to advance what the client “wants”8

The Specific Duties of the Independent Children’s lawyer:

  • –          The ICL must act impartially in dealings with parties to the proceedings.9 (Note: the appearance of bias may be tested by asking whether a “fair-minded observer might reasonably apprehend that the ICL might not bring an impartial or unprejudiced mind to the task of independently representing that child”10]).
  • –          The ICL must fully put any relevant views the child might have to the court.11
  • –          The ICL must analyse any report or document relating to the child that is used in the proceedings, and identify those matters which are most significant to the child’s best interests.12 They must then ensure that the court is made fully aware of those particular matters.13
  • –          The ICL must endeavour to minimise the trauma to the child associated with the proceedings.14
  • –          The ICL must “facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child”.15

In addition to these statutory provisions, a recent report from the Attorney General’s Department identified three overlapping functions in the ICL role: facilitating child participation, evidence gathering and litigation management (being an ‘honest broker’).16

Facilitating child participation

An ICL has the responsibility of facilitating the participation of children and young people in family law proceedings. This role arises from a number of articles within the United Nations Convention on the Rights of the Child (UNCRC), including article 9 which upholds a child’s right to participate in proceedings relevant to their care.  The ICL must ensure that the child’s views are heard and respected, and that the child is able to have an impact upon the outcome of any proceedings affecting them.

Evidence Gathering

ICLs also bear the responsibility of ensuring that the necessary evidence is obtained and put before the court. This role involves arranging subpoenas for documents or witnesses, conducting criminal history checks, gathering formation about personal protection order relevant to people involved with the child, and obtaining family reports or reports by single expert witnesses.

Litigation Management

ICLs must ensure that litigation is conducted in a child-focussed manner, that the settlement of a matter is encouraged when appropriate and that they themselves act as ‘honest brokers’ where necessary.

Who pays for them?

According to regulation 8.02 of the Family Law Rules 2004 (Cth) the court may:

  • –           Request for a relevant legal aid authority to arrange representation for the child; and
  • –           Order that the costs of an ICL be met by a party to the proceedings17.

The fees of an ICL are usually footed by the relevant Legal Aid State authority. Legal Aid New South Wales has determined that it will likely not cover matters where the total costs and disbursements exceed $18,00018. However, in exceptional circumstances arrangements may be made with the chief executive officer, Legal Aid NSW, for additional funding19.

Legal Aid NSW mandates that parties to the proceedings who are not in receipt of legal aid should contribute equally to the costs of the independent children’s lawyer. Any party not in receipt of legal aid will generally be required to pay their share of a basic composite fee totalling $3,300 (including GST) which covers the anticipated cost for work up to but not including the defended hearing of the matter20.

In addition to the basic composite amount, each party will be required to contribute in the same proportion to any additional costs of the independent children’s lawyer including on the final hearing (including counsel fees, if any)21.

Legal Aid NSW provides an approximate estimation of all the costs associated with ICL representation 22.

Do we really need them?

In considering this question it is vital to consider the emphasis that Australian courts place upon the welfare and best interests of any child involved in the proceedings. Several sections of the Family Law Act 1975 (Cth) require the court to regard the welfare (or interests) of a child involved in proceedings as the paramount consideration, including sections 60CA, 67L AND 67V.

Selby J further explained in Clarkson v Clarkson that in family law litigation the interests of the parties take second place and that “regard for the interests of the child is the determining factor”23.

In fact, the Best Practice Guidelines for Lawyers Doing Family Law Work encourages lawyers who act for a parent to explicitly clarify that the court approaches the matter from the viewpoint of what is best for the child, which can override the wishes of parent and/or child24. Because there is such a heavy emphasis on maintaining the child’s best interests and welfare it is evident that independent family lawyers are necessary.

SURVEY: Tell us about your experience with an Independent Children’s Lawyer (ICL)

  1. Family Law Act 1975 (Cth) s 68L(1)-(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68l.html
  2. Re K (1994)17 Fam LR 537, 538 http://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=http://www.tved.net.au/PublicPapers/November_2009,_Lawyers_Education_Channel,_The_Independent_Children_s_Lawyer.html
  3. United Nations Convention on the Rights of the Child art 3
  4. Ibid art 12.1
  5. Family Law Act 1975 (Cth) s 68LA(2). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  6. Ibid (3). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  7. Ibid(4). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html Case law
  8. Separate Representative v JHE and GAW (1993) 16 Fam LR 485, 514
  9. Family Law Act 1975 (Cth) s 68LA(5)(a)http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  10. Kingley v Arndale (No 2) (2010) 255 FLR 326, [33
  11. Family Law Act 1975 (Cth) s 68LA (5)(b)http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  12. Ibid (5)(c)(i). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  13. Ibid (5)(c)(ii). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  14. Ibid (5)(d). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  15. Ibid (5)(e). http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s68la.html
  16. Kaspiew et al, ‘Independent Children’s Lawyers Study Final report’ (Report, Australian Institute of Family Studies, May 2013) 164.   http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/IndependentChildrensLawyersStudyReport-Publication.pdf
  17. Family Law Rules 2004 (Cth) reg 8.02(2). http://www.austlii.edu.au/au/legis/cth/consol_reg/flr2004163/s8.02.html
  18. Ibid
  19. Ibid
  20. Ibid
  21. Ibid
  22. Legal Aid NSW, Information for Independent Children’s Lawyers <http://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/family-law/information-for-lawyers>
  23. Clarkson v Clarkson (1972) 19 FLR 112, 114
  24. Family Law Council and Family Law Section of the Law Council of Australia, Best practice Guidelines for Lawyers Doing Family Work (2nded, October 2010), pt 6 para 1.5. http://www.familylawsection.org.au/pages/content.asp?plid=23

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