Author Archives: admin

Family Court Refuses Relocation Request Because of Children’s Aboriginality

on by

family-law-stolen-generationsA woman  barred by a landmark Federal Circuit Court decision from leaving Warrnambool district and   moving to Western Australia with two of her sons because of their Aboriginal heritage has described the ruling as reverse racism.

The court last week ordered that the boys, aged under 10,  must remain close to their Aboriginal father in their cultural homeland and live with their mother.

She must keep their principal place of residence in   the “Warrnambool shire” unless both parents consent otherwise.

The boys had a “casual” relationship with their father, who had previously abused drugs an alcohol and had battled mental illness.

The judge said the father was not a person who felt bound by routine and order, but he had consistently involved the children with their extended family and Aboriginal culture.

The mother is  of  European heritage and had planned to move to Western Australia to live with her partner, a Maori man, who is the father of  another of her children, a  five-year-old son not covered by the court order. “This is reverse racism and a restriction on my freedom of movement,” the mother told The Standard yesterday.

The mother argued that her new partner had a stable and well-paid job in Western Australia, which would not be available in the Warrnambool area, and could offer the boys ­financial stability and a positive role model.

“Why is one ethnic group more important than another?”

james-hemi-tioroHer partner, James Tioro, plans to protest by riding a pushbike from Perth to Warrnambool and call for more understanding between races, particularly Maoris and Aborigines.

“This is an issue that affects all Australians,” he said.

James Tioro met his partner two-and-a-half years ago while working on a windfarm project in Warrnambool, but moved to WA for better work prospects.

“(In Warrnambool) you get paid $20-22 an hour compared with $50-55 for the same work here,” he said.

“It forced me to choose between taking my young son back to Western Australia, where I had steady employment, or leaving him in Warrnambool with his mother, who wanted to come with me to give her children a brighter future.”

The two boys’ father, who has not had a full-time carer’s role in their lives for several years, had opposed the relocation saying it would cut connection to their Aboriginal heritage and traditional community which he fostered with the children during access visits.

He brought the issue to court’s attention when the mother broke an access agreement a year ago by spending an extended period in Western Australia, intending to settle there, without telling him.

Warrnambool district Aboriginal community elders Robbie Lowe and Len Clarke said the court ruling was a landmark for south-west Victoria and probably Australia.

“It’s unique and I believe we’ll see more of this type of decision as courts see the need for recognition of culture,” Mr Clarke said.

“However, I’m concerned if freedom of movement is restricted it could have long-term impacts on a child’s well-being if the parents’ employment is affected.”

Mr Lowe, who appeared as a witness in the court hearing, welcomed the ruling for its cultural significance.

“Once children are taken away from their heritage they lose their identity,” he said.

“I know from personal experience that when children are taken away they lose touch — sometimes you can never get them back.”

In his ruling Federal Circuit Court judge Terry McGuire said: “It would not be an exaggeration to suggest that the focus of their education and cultural learning is through this Aboriginal community”.

“I am satisfied the specific peculiarities of these children’s community cannot be substituted by involvement in another community in Western Australia,” he said.

“This, therefore, is the other consideration which assumes real weight and is to be balanced against the mother’s freedom of movement and continuing role as primary parent.”

The Standard cannot identify the mother or children because of legal reason.

Attorney-General George Brandis’ report is justice delayed

on by
george-brandis-family-court-funding-cuts

Attorney-General George Brandis

The Family and Federal Circuit Courts have been spared the full force of the budget axe, despite being in line for cuts of up to $30 million.

This comes when warring couples face delays of up to two years to resolve family disputes and after the Attorney-General George Brandis was handed a ­report by KPMG on court performance and funding.

The budget removed almost $4m in government funding from the courts — a cut of ­2.5 per cent. The courts’ chief executive, Richard Foster, said the reduction from $152.6m in 2013-14 to $148.8 in 2014-15 formed part of the commonwealth’s ongoing efficiency dividend.

Mr Foster said the courts were waiting for the government’s response to the KPMG report to determine their future funding and resources. “The outcome of that report will provide the most significant understanding on how the courts continue to deliver services,” he said.

The Coalition vowed before the election to save $30m by “streamlining” Family Court processes. However, barristers and solicitors have warned that the courts’ stretched resources are causing delays to family hearings and compromising the welfare of children and women at risk of violence.

Senator Brandis said he was committed to ensuring the courts operated as effectively and efficiently as possible, and could provide “easily accessible services” for the resolution of family disputes.

“The courts need efficient and sustainable funding models to ensure they can serve the Australian community effectively, even in times of fiscal constraint,” he said. The government was considering the KPMG review and the Productivity Commission draft report on access to justice and had sought the courts’ input.

Opposition legal affairs spokesman Mark Dreyfus said all courts were under pressure to deal with disputes in a timely way with limited resources. However, delays caused by a lack of available judges were not acceptable.

“The saying justice delayed is justice denied is particularly true of family law matters, where the uncertainty of protracted litigation can only aggravate an already difficult situation that frequently arises in family law disputes,” he said.

Greens legal affairs spokeswoman Penny Wright said the Attorney-General needed “to be honest” about whether he ­intended to cut $30m from ­family law processes.

Calling for urgent action to ensure the courts and legal assistance were properly funded, Senator Wright said the government needed to take account of the indirect costs of court delays, including the impact on families and mental health. “The justice system is fundamentally broken when people are waiting up to two years to resolve family law disputes,” she said.

Senator Wright said it was time for Senator Brandis to “end the secrecy” and release the KPMG report on the performance of the federal courts. “Taxpayers paid for this report and they deserve to see the findings.”

The Law Council of Australia this week hit out at the Coa­lition’s decision to cut $15m in funding to legal aid services.

Law Council president Mic­hael Colbran QC said what was needed was an additional $80m for the chronically underfunded services.

Senate Inquiry Into Grandparents Raising Children

on by

gradparents raising childrenA Senate inquiry is looking into the challenges facing grandparents raising their grandchildren, and how they might be better supported.

At a time in their lives when they may have envisaged retiring and taking things a little easy, some Australian grandparents find themselves raising their grandchildren.

How many is unknown, as often they enter into informal arrangements with the children’s parents who might be dealing with mental illness, substance abuse or family violence.

A Senate inquiry is looking into the challenges facing grandparents raising their grandchildren, and how they might be better supported.

Phillippa Carisbrooke reports.

Abuse and neglect, homelessness and illness – just some of the reasons why grandmas and grand-dads find themselves caring for their grandchildren.

Grandparents from migrant or refugee backgrounds who take on the responsibility of raising their grandchildren when parents are unable or unwilling to do so face unique challenges.

Where grandchildren haven’t been brought up speaking the grandparent’s language of origin, for example, communicating successfully can be a struggle.

Bluecare, which provides aged care services, recently consulted with migrant and refugee communities about the experience of grandparents caring for their grandchildren.

It found many were afraid of the authorities and how their cultural parenting practices might be assessed.

Some preferred to remain invisible.

Bluecare’s multi-cultural advisor, Gaby Heuft, says the creation of a national peak body for grandparent carers could improve things.

“Many seniors don’t know where to turn to. They say there is no one place that they can go and get information. A peak body would be a one stop shop where people can call or come to with their concerns for advice.”

For Aboriginal grandparents who may have been forcibly removed from their families as children seeking help can be traumatic.

Winangay Resources supports Aboriginal children and their families.

The organisation’s Paula Hayden says it would like to see the provision of culturally-appropriate support services and assessments for Aboriginal kinship carers.

“Many are fearful of coming forward to authorities, to DOCS (NSW Department of Community Services) and other departments because of the history. And that is particularly true of Aboriginal carers who are fearful of government intervention especially given the history of previous intervention by governments and Aboriginal people.”

Less than five per cent of children in Australia are Indigenous.

Yet they make up a third of those placed in out-of home care.

Ms Hayden says if appropriate support services were put in place, more Aboriginal grandparents could care for their grandchildren, and the incidence of out-of-home care could be significantly reduced.

“What we believe is that there is an opportunity for Aboriginal grandparents and Aboriginal family members to be able to be assessed in culturally-appropriate ways. It’s much more likely that children will be able to come home and that they will be able to stay with kin and family.”

The Northern Territory has a high rate of teenage motherhood.

And research shows young mothers are more likely to struggle in their parenting role, with grandparents often stepping in to provide care.

The Territory’s Children’s Commissioner Dr Howard Bath Aboriginal grandparents caring for the children of teenage parents are in despair, and suffering from exhaustion.

He suggests the burden on grandparents might be eased if there were more programs to improve the skills of young parents.

The costs associated with raising children pose another challenge for grandparents.

Clothes, food, childcare.

Grandparents in formal caring arrangements organised through child protection services receive a kinship care payment.

Grandparents in informal caring arrangements don’t.

They have to apply to receive fortnightly Centrelink child support payments.

And the NT Children’s Commissioner Howard Bath says many are reluctant to do so.

“The grandparents are afraid to apply to get the Centrelink, or get the Centrelink payments, because then their children might withdraw the kids from the care of the grandparents so that they can get the allowance. So that’s a real dilemma.”

Grandparents in informal caring arrangements are also unable to claim family tax benefits.

COTA Australia, which represents the rights and needs of older Australians, cautions that lack of financial assistance may discourage grandparents who see their grandchildren at risk intervening early.

Its Chief Executive, Ian Yates, says many grandparent carers are under immense financial strain.

“For many they are living on a fixed or lower income. They have already perhaps downsized for their retirement and suddenly they are faced with the responsibility of a number of one, two, three, four grandchildren. And then there’s the issue of the potential for legal costs.”

COTA Australia says it’s heard of grandparents seeking to formalise their custodial arrangements through the Family Law Courts facing legal bills running into tens-of-thousands of dollars.

It says the high cost of legal action puts it beyond the reach of many grandparents, and they’re forced to continue in insecure informal care arrangements.

Ian Yates says Australia’s legal aid system should be reviewed to give grandparents improved access.

“Our legal aid system in Australia has extremely strict asset tests and income tests and basically if you own your own home or have any kind of steady income you are excluded from it. Now what we are saying is that the particular case of grandparents needs to be looked at as a special case.”

But Dr Howard Bath says it’s not just financial support that grandparents in informal caring arrangements are missing out on.

“It’s also the supervision and support and sometimes training that is offered for the grandparents in doing that job. So there is a case worker that they can talk to and hopefully receive support from in their role as caring for that child.”

Grandparent advisers are available at some Centrelink offices to support grandparents with full-time caring responsibility for their grandchildren.

But there are just six nationwide.

Bluecare would like to see the contribution of grandparents raising their grandchildren recognised, with the creation of a national Grandparents’ Day.

Multi-cultural advisor Gaby Heuft says the remarkable job they do should be acknowledged.

“Many grandparents feel that they are not really valued in the public eye, so such a national Grandparents’ Day could be in recognition and celebration of grandparents’ achievements and dedication that would increase the respect by the general community and set positive role models that we can emulate.”

Cuts in Funding for Family Courts Create Dangerous Delays

on by

family-court-of-australiaCHILD welfare is being compromised and the safety of women put at risk because of unacceptable delays in the nation’s family law system, with courts in Sydney’s west reaching “crisis point”.

Desperate barristers took the extraordinary step of writing to Federal Circuit Court Chief Judge John Pascoe last month about the backlog of cases at Parramatta in western Sydney, when they learned a respected judge was to be moved to Melbourne. Senior solicitors and barristers say urgent matters involving child abuse and domestic violence are regularly being delayed for up to three months for interim hearings at Parramatta, and it is taking about 18 months to get final hearing dates.

Chief Judge John Pascoe said, in a letter obtained by The Australian, that the Federal Circuit Court was in a “difficult situation”, blaming cost-saving measures by the previous government.

The profession fears tomorrow’s federal budget will cut the courts’ resources even further because the Coalition went to the election promising to save $30 million by “streamlining” Family Court processes.

The chairman of the Law Council’s family law section, Rick O’Brien, said similar problems were being felt across Australia.

He said it was understood another nine judges were needed nationally for the Federal Circuit Court, which handles about 90 per cent of family law matters, to meet its current workload.

In one case The Australian has learned about, a father, who had not spent time with his five-year- old daughter since January 2013 because his ex-partner had been denying him access, was told in December that a date was not available for 18 months for a hearing about the mother’s contravention of interim parenting orders.

The Parramatta-based judge said this meant he could not provide the parties with a date at all, because his calendar did not extend beyond 18 months. The case has been in the system since 2010, when the girl was two.

In a letter copied to Attorney-General George Brandis, the head of Parramatta’s Arthur Phillip Chambers, David Maddox, wrote to Chief Judge John Pascoe on March 20, after learning of the imminent departure of judge Joanne Stewart.

“In the event that there is no replacement (for Judge Joanne Stewart), our members do not understand how the registry can continue to operate without lengthening ­delays, particularly for final hearings,” he wrote on behalf of other Parramatta barristers.

“As it is, there can be a delay of 18 months or more from first ­filing to final hearing … even if there are no interlocutory steps which inevitably delay the matter.”

Chief Judge John Pascoe replied on March 25: “Unfortunately, at this stage there is no replacement for Judge Stewart … the court is in a very difficult position in relation to judicial resources. As a cost-saving measure, the previous government did not make a number of replacement/­additional appointments to the court, despite an increasing workload.” Barrister Michael Kearney SC said the Parramatta registry of the Federal Circuit Court was at a “crisis point”.

“If a client comes to see me today they are two to three years away from a resolution, and that’s if everything goes according to plan. Some are four or five years in the waiting,” he said.

Barrister Paul Sansom said there was a “significant” risk of children being harmed or women being subjected to violence because of the delays. “There is potential also for significant frustration and damage to relationships between children and their estranged parents,” he said.

Family lawyer Jacqueline Kyle, from Smythe Wozniak, said she feared she would one day have a client killed because of undue delays in resolving their disputes. “You don’t get a second chance with children,” she said.

13 y/o Girl gets legal right to Abortion

on by

Teenage girl holding pregnancy testA HIGH Court judge has ruled that a 13-year-old girl is has the right to decide if she wants to terminate her own pregnancy.

The pregnant schoolgirl discovered she was pregnant after her grandmother noticed she had a “bump” a few weeks ago. Her grandmother took her for tests.

The teenage girl still lives at home with her parents.

Health authority bosses had asked Mr Justice Nicholas Mostyn to decide whether the teenager had the mental capacity to understand the options available to her.

After hearing evidence from a psychiatrist who had interviewed her, the judge found that she did.

The psychiatrist said that although she was “softly spoken” she was able to explain to him that her wish was to terminate the pregnancy as “she felt that she could not cope with its continuance and it would stress her to a considerable degree”.

The judge said it was for the girl to “decide what she wishes to do”.

Tests revealed the girl was probably more than 20 weeks pregnant when the case first went before the High Court as an emergency hearing in mid-March.

The local authority, which is in the North of England, was forced to seek a declaration that she had the capacity to make the abortion decision herself.

“I am completely satisfied that (she) has sufficient understanding and intelligence,” he said in his ruling.

“It will now be for her to decide what she wishes to do.”

The High Court ruling was required to ensure that doctors and the hospital could not be sued if they carried out the abortion.

If the girl was not able to understand the situation, the local authority would be allowed to terminate the pregnancy if doctors believed it was in her best interests.

The significance of this case to Australia is that foreign case law can at times be used as a persuasive precedent within Australian Court jurisdictions.

Where there’s a will, there’s a writ

on by

family provisions act, judgeThe number of will disputes reaching the Supreme Court has shot up by almost 60 per cent since 2005, with blended families, entitled grandchildren and burgeoning estate values driving up the number of claims.

While the death rate in New South Wales has increased by about 10 per cent over the past decade, fights over the family fortune rose by 59 per cent between 2005 and 2013.

Statistics from the Supreme Court of New South Wales show 919 will disputes were heard last year but legal experts say the real figure is much higher as about 95 per cent of claims are settled through mediation before they reach court.

Aitken Lawyers director Walter MacCallum said a growing number of will disputes involve grandchildren such as the recent Supreme Court case in which 46-year-old Robert Wilcox made a $1.1 million claim on his grandfather’s $5.5 million rural estate, which had been left to his mother.

Despite not having worked in agriculture since 2001, the court found he was entitled to some money and ordered he be paid $107,000 to clear a tax debt.

Mr MacCallum said families can be torn apart by proceedings.

”If the matter is not resolved in mediation you more often than not basically have an irreparable family breakdown,” he said.

”Having said that, the breakdown has often occurred before the claim has been made. Even with mediation, you don’t see reconciliation between family members.”

In the 2013 Supreme Court case, Jagoe v Maguire, John Jagoe brought a claim against the will of his late wife, who had left her $1.3 million estate to her four children from her first marriage.

The judgment by Justice Philip Hallen refers to family members abusing each other in court, bickering over a $10,000 Datsun and one beneficiary suffering mental illness attributed to ”inter-family conflict and the siblings arguing”.

”Emotions during the case were, understandably, raw and painful,” he wrote.

”Hopefully, the termination of the proceedings by judgment will settle the hostility that has rocked the family since the death of the deceased.”

Wills and estates specialist Eric Butler said disputes can become very messy, especially when new spouses, former spouses and stepchildren are involved.

”Lawyers will always try to settle them at mediation,” he said. ”The problem is the clients don’t see they are stuck with the law. They can only feel their emotions and how unfair it is, and often it is really unfair.”

This does not deter people from making claims, with Mr Butler saying the increase is also fuelled by greater public awareness of legal rights under the Family Provision Act.

”There is a lot of negative comment about this area of law but the law has always existed,” he said.

”I started advertising about 15 years ago to let people know they could challenge a will. It’s not sinister. Like a lot of law, people didn’t even know they had rights and now they do. There’s always the argument that lawyers are out to get you but the reality is there are a lot of bad wills.”

A Law Society of New South Wales seminar on the Family Provision Act drew a record crowd, according to wills and estates spokesman Darryl Browne, who explained: ”Family provision does push people’s buttons.”

He believes the increase in remarriage and second families has spurred on the growth in claims as well as the value of the potential spoils.

”There has been an enormous increase in the size of estates over the past 10 years,” he said.

”It was rare to have an estate of more than $1 million 10 years ago, but now it’s common due to the value of property and superannuation. People save unwittingly sometimes. There’s more in the kitty, so there is more reason for people to pursue claims if they feel they have been slighted.”

Taxman gets access to documents in Family Court feud

on by

australian-tax-officeWarring couples may think twice about airing their dirty laundry in the Family Court after it ruled the Tax Office could use financial information filed in one dispute to audit the parties for potential tax evasion.

In a case decided this month, a three-judge bench of the Family Court gave the Tax Commissioner access to documents in a feud between a Mr and Mrs Darling, a Peter Pan-esque pseudonym given to the couple by the court.

It also released the Tax Office from an obligation not to use documents for a purpose unrelated to the original court case.

The Darlings settled their Family Court stoush in December 2010 but the commissioner was dogged in his determination to use the documents as part of a massive audit of Mr Darling’s tax affairs stretching over two decades, from June 1991 to June 2010.

The Tax Office wanted to know the value of “funds to support his lifestyle”, including worldwide assets and income.

The Commissioner applied to the Family Court for permission to use the documents. He was knocked back last year by Justice Kirsty Macmillan, who ruled there was insufficient evidence of “special circumstances”.

He successfully appealed that decision to the Full Court of the Family Court of Australia, comprising Justices Stephen Thackray, Andrew Strickland and Peter Murphy.

The court found the Tax Office had provided sufficient information about the purposes for which it wanted the documents.

Niv Tadmore, a tax partner at law firm Clayton Utz, said the case would make it easier in the future for the commissioner to argue the Family Court should grant access to documents.The decision is made on a case-by-case basis.

“The application [in the Darling case] was funded under the ATO test case litigation program, so the outcome of this case must have some precedential value in the mind of the Commissioner as to how he conducts audits in the future,” Dr Tadmore said.

“Having achieved the desired result, it is very likely that the Commissioner will be making more such applications.”

Among the factors that weighed in favour of granting access to the documents was that the Commissioner was conducting a “targeted, substantial audit” rather than a random exercise.

The secrecy provisions that bound the Tax Office would ensure the documents did not “venture into the public arena”.

The court said the decision was unlikely to create a greater disincentive for people to be forthcoming in Family Court cases, and they were under a “heavy obligation” to be frank.

“It is vital to recognise that there is already a disincentive to ligitants to be frank with the Family Court about tax evasion because … the court can (and does) refer such matters to the authorities for investigation,” it said.

A spokesman for the Tax Office said it did not expect an increase in the number of cases in which the Commissioner sought access to Family Court documents.

“The Commissioner in some limited number of matters will seek to obtain access to court documents in general for the purposes of assessing a person’s tax liability and capacity to pay a tax liability,” the spokesman said.

Parenting plans or Family Court Orders? – your choice

on by

parenting-plan-court-ordersIf you separate from your husband, wife or de facto partner and you have children together, you both have a continuing responsibility for the care of your children. So what are the options when it comes to figuring out the care arrangements for the children?

If you are unable to discuss those options between yourselves, you are encouraged to attend mediation.

The discussions will include:

who the children live with
when they see the other parent
the specifics of hand-over, such as where it will happen, who drives
providing for contact by other means (such as phone calls etc) when the children are with the residential parent
arrangements for special events like Christmas, New Year, Birthdays, Mother’s Day, and Father’s Day
arrangements for travel – domestic or international
schooling, religion, and medical care amongst other issues

The level of detail in the agreement will often depend on how flexible the parties are and how well they communicate after separation.

If the parties can reach agreement on the arrangements for their children at mediation, the mediator will usually encourage them to draft and sign a Parenting Plan. However, they do so at their own risk for one very important reason – enforceability.

If you and your ex agree on the arrangements for the children, and record this in a parenting plan, what happens if one party stops adhering to the plan? They might, for example, stop you spending time with your child. You cannot enforce the plan.

We always commend parties for being able to reach agreement on the arrangements for the children but we strongly recommend that the agreement/parenting plan is formalised by filing an application for Consent Orders at the Family Court of Western Australia.

The parties and their lawyers are not required to attend court. The process merely requires the details of the agreement/parenting plan to be filed at the Family Court. Assuming they are in the best interests of the children, the court will make the orders.

This way, if your ex becomes less co-operative (which can occur, for example, when one party starts a new relationship), you have the option of asking the court to enforce the agreement.

The Family Court requires, in the absence of urgency or other reason such as family violence, that all parties attempt mediation to resolve their issues before seeking its assistance.

If you have attended mediation and have not been able to reach final agreement, or if the other party refuse to attend mediation at all, you will be issued with a certificate which will allow you to file an application at court setting out your proposals for the future care of your children.

Thereafter, your ex will file their proposal in response and the matter will progress through the court which will assist you in your attempts to reach agreement. If that is not possible, it will make orders based on the best interests of the children.

If one party then fails to comply with the orders, whether agreed or ordered by the court, the other party can file an application to enforce the orders. The court can apply a variety of sanctions to ensure compliance.

The sanctions applied will depend upon the situation and the nature of the breach but can include paying the other party’s legal costs, paying compensation for lost time with a child, a requirement to attend a post-separation parenting program, a community service order, payment of a bond or fine or even imprisonment.

As time passes things might change. One or both of you could re-partner, you might have more children, your children’s needs might change as they get older. If orders were made by consent, or by the court, you may both agree to change the orders by consent. Again, any informal changes not recorded by the Family Court will not be enforceable.

It is only possible to change orders by consent and have these changes made into orders of the court where the original orders provide for this.

However, it is possible to seek an amendment to orders made by the Family Court, under section 65D(2) FCA.

As you might imagine, the court wants to limit litigation and therefore it is generally only possible to seek an amendment where there has been a significant change in the circumstances of the parties, or a material factor was not disclosed at the earlier hearing which would justify changing the orders.

This is so even where the parties both agree to a change in the orders but will also depend on the changes proposed as well as how long it has been since the previous orders were made.

Whatever you do, you need to remain flexible and reasonable as far as possible, whilst making sure you safeguard your own position in case problems crop up further down the track.

Related Family Law Information

  • No items found in feed URL: http://www.familylawexpress.com.au/family-law-brief/category/children/childcustody/parenting-plans/feed/. You requested 15 items.

    • Family Court subpoenas – a guide for professionals

    on by

    family-court-subpoenasDealing with subpoenas from the Family Courts is becoming a common occurrence for many professionals. Applications for financial, banking, insurance, superannuation or medical records are common place in the interests of full mutual disclosure by both parties in a relationship breakdown.

    Most professionals will simply hand over the requested material without any scrutiny of what is contained and in most cases this does not cause issues, however there is material which may be protected and should be objected to, and professionals should closely scrutinise what they are producing.

    Failure of a professional to object to a subpoena for their client’s information could expose the professional to a claim of negligence from their client. It is important, therefore, that professionals have an understanding of how subpoenas work, how they must be complied with and how to object to them.

    A subpoena is an order issued by the Court to compel a person or business to either produce records, or attend court as a witness, or both. The Court issues a subpoena at the request of one of the parties to the proceedings and the document will be served on the entity the party is seeking information from.

    You must comply with a subpoena, unless it was not served on you correctly under the Family Court Rules. The Rules require that the subpoena is served on you by hand, at least 7 days before the court date, and also pay your reasonable expenses (known as “conduct money”) for complying with the subpoena. If you have any concerns about the service of the subpoena you should contact a lawyer to discuss the matter.

    There are very serious consequences if you do not comply with the subpoena, including the Court issuing a warrant for your arrest or ordering you to pay any costs caused by your non-compliance. The court may also find you guilty of contempt of court.

    If you are a professional who has received a subpoena for your client’s information, the first step is to advise your client and seek their instructions about anything they are concerned being disclosed to the other parties. In addition to this it would be wise to seek the assistance of a lawyer to see if any of the material would fall into a category which could be objected to.

    If the subpoena is to give evidence, check the date, time and location that you are required to attend. The party serving the subpoena must also provide you with reasonable conduct money to cover any travel expenses, accommodation, meals etc. If they have not you can contact the party issuing the subpoena and request the conduct money.

    If the subpoena is for the production of documents you can either provide the originals or copies of the documents. Read the subpoena carefully, it will tell you when and where to produce the documents. An important point to note is that that the documents get sent to the court, not the other party. Again the party issuing the subpoena should provide you with reasonable conduct money to produce the documents.

    If you have concerns about the nature of the material that the other party has requested, because it doesn’t seem relevant, is privileged or somehow else sensitive, then you need to get independent legal advice as soon as possible. There are a number of legal grounds that you can object to the subpoena, but you have to let all parties know with adequate time. Arguing against a subpoena involves complex areas of law, so it is wise to have a lawyer handle this side of things for you.

    Normally the court will hold the material produced pending any objections being heard about it being produced to other parties. Once these issues are determined the court will either make material available for viewing, copying, or both, or else strike the subpoena out and have the material returned to you.

    Related Family Law Information

  • No items found in feed URL: http://www.familylawexpress.com.au/family-law-brief/category/evidence/subpoena/feed/. You requested 15 items.

    • Father wins custody of his abducted son

    on by

    Passport-and-Child-abductionA child who was abducted by his mother and taken to Europe will live with his father full time in Australia — and spend no time with his mother.

    When the boy was three, the mother became convinced the father had sexually abused the boy and feared he had involved him in a pedophile ring. She ­secreted him to Europe for 2½ years, where his father ­found him in September 2010. The boy and his ­father returned to Australia in January 2011. The ­mother was extradited to Australia two months later.

    The mother has since been convicted in the NSW District Court of taking the child, now nine, out of Australia. She faces a jail term of up to three years.

    Family Court judge Garry Watts said he accepted the mother “unshakably and implacably” believed the boy was sexually abused by his father, but he found the mother suffered from a psychotic illness and sometimes was deliberately untruthful.

    “Placing the child with his mother in circumstances where there is no short or medium-term prospect that the mother will gain the insight to seek treatment for that disorder is in fact a highly risky position into which to place the child,” he said, adding a court would not grant custody or access to a child if doing so would expose the child to “unacceptable risk” of sexual abuse.

    “The decision about whether or not there is a risk and, if so, whether that risk is unacceptable, cannot be made lightly and can only be made after substantial consideration of the facts in a particular case,” he said.

    Justice Gary Watts found there was no unacceptable risk the father had sexually abused the child or that he had been involved in a pedophile group. He ordered the boy live with his father, and have only phone or Skype contact with his mother, when the child requested to do so. A photo of the mother was to be prominently placed in the boy’s bedroom.

    Justice Watts said the road back to the mother having a relationship with her son was for her to seek treatment for her mental illness. “I understand the mother will not be able to accept my findings at this time and that she ­believes I fit into a profile of ­judges which she thinks exist in the Family Court, who brand as ‘mad’ mothers who make sexual-abuse allegations against fathers of their children,” he said.