Yearly Archives: 2015

FULL REPORT RELEASED: Independent Study of Australia’s Independent Children’s Lawyers

on by
Jessica Goddard

Jessica Goddard

Online Legal Information Author at Family Law Express
I am currently studying my fourth year of a combined Law and Social Science degree, majoring in development and cultural studies at Macquarie University, NSW. I have a strong passion for social justice and humanitarian issues and highly value the role of legal research and legal reform in positively impacting these areas. I have paralegal experience spanning a number of areas of law and endeavour to use my legal knowledge and skills to assist those facing legal complications or a challenge of their rights.
Jessica Goddard

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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.
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Read the Full Report here.

Hearsay – What is it and when can you use it?

on by
Susan Jayne

Susan Jayne

Online Legal Information Author at Family Law Express
Susan Jayne is currently in her fourth year of attaining degrees in both Law and Psychology. While volunteering at a Psychology Clinic throughout her university studies, she’s aspiring to find a career which utilises her new found knowledge in both of her chosen fields.
Susan Jayne

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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.  ↩

How to File a Subpoena For Medical Records

on by

Prajesh Shrestha

Online Legal Information Author at Family Law Express
'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

Latest posts by Prajesh Shrestha (see all)

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. ↩

How to make a complaint against your Solicitor

on by
Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

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olsc-complaintsHave you ever had serious concerns with the way your solicitor has dealt with your case? For instance, do you believe your solicitor has not respected your confidentiality, or do you believe that your solicitor has been overcharging you?

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

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

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

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

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

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

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

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

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

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

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

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

What other bodies help with the dispute?

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

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

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

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

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

How to Remove a Judge or/and an ICL from Proceedings

on by

Prajesh Shrestha

Online Legal Information Author at Family Law Express
'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

Latest posts by Prajesh Shrestha (see all)

court-judgment-300x219The 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. ↩

Audio Recordings as Evidence in Family Court Proceedings

on by
Jessica Goddard

Jessica Goddard

Online Legal Information Author at Family Law Express
I am currently studying my fourth year of a combined Law and Social Science degree, majoring in development and cultural studies at Macquarie University, NSW. I have a strong passion for social justice and humanitarian issues and highly value the role of legal research and legal reform in positively impacting these areas. I have paralegal experience spanning a number of areas of law and endeavour to use my legal knowledge and skills to assist those facing legal complications or a challenge of their rights.
Jessica Goddard

Latest posts by Jessica Goddard (see all)

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.
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  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>. ↩

Independent Children’s Lawyers (ICL) & Australian Family Law

on by
Karan Dayal

Karan Dayal

Online Legal Information Author at Family Law Express
I am currently in my second year of a Bachelor of Laws/Commerce (Majoring in International Business) at Macquarie University. Personally I take an interest in legal research and courtroom advocacy and participating in many law moots. Upon graduating I hope to enter the legal profession as a public prosecutor.
Karan Dayal

Latest posts by Karan Dayal (see all)

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 ↩

Contravention of Court Orders or AVOs. What options do you have?

on by
Ewa Zieba

Ewa Zieba

Online Legal Information Author at Family Law Express
Ewa is completing a Bachelor of Social Science and Laws at Macquarie University with a major in Anthropology. With experience at specialist family law firms and Women's Legal Services NSW, Ewa is pursuing a career specializing in family law. Special interest areas include the care and protection of children and alternate dispute resolution, with an aim to improve access and participation in parenting matters.
Ewa Zieba

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contravention-of-court-orders-and-avoCourt Orders are the decisions or judgements of judicial officers, including Judges or Magistrates.

They can include an order made after a hearing by a judicial officer or an order made after parties have reached their own agreement and have applied to a court for consent orders.

Court Orders include Parenting Orders, Consent Orders and Financial Orders. Once an Order is made, each party affected by the Order must comply with it.

What to do in the event of a breach of Court Orders?

Attend family dispute resolution

Family dispute resolution can help you and the other party to work through your disagreement. This option is useful if parties feel that breaches of the order have occurred due to terms in the order that are unclear or not practical because of a change in circumstance. As both parties are involved in creating a solution the process can be collaborative with the outcome tailored to suit the needs of both parties. Parties can attend family dispute resolution before filing a court application and if an agreement is reached the parties can make a parenting plan or apply to the court for consent orders. This option is not suitable where there has been history of family violence in the domestic relationship.

Get legal advice

A lawyer can help you understand your legal rights and responsibilities under the order and advise you on the most appropriate step to take. Attaining the services of a lawyer may also assist in reaching an agreement without going to court. You can find legal advice at a legal aid office, community legal centre or a private firm.

Apply to a court

For Parenting Orders, apply to a court for a contravention order:

A court may only penalise an individual for breaching a parenting order if a party to the order files a contravention application alleging that the individual has failed to comply.If the court determines an individual has breached a parenting order, without reasonable excuse, it may impose a penalty. Depending upon the circumstances and the severity of the breach, a court may:

  • – Order attendance at a post separation parenting program
  • – Compensate for time lost with a child as a result of the breach
  • – Require the person to enter into a bond
  • – Order the individual in breach to pay all or some of the legal costs of the other parties
  • – Require the person to participate in community service
  • – Order that a fine be paid
  • – Order imprisonment
  • – Discharge, vary or suspend the order to allow a party to apply for a further order to alter the parenting order1

For Financial Orders, apply to a court for an enforcement hearing:

If you cannot reach an agreement you may consider applying for an enforcement hearing.The respondent will be cross-examined as to the state of their financial affairs and their ability to pay their financial obligations under the order. The process can be complex and you should seek legal advice before proceeding.

The outcome of the enforcement hearing may result in the court:

  • – Identifying the total amount owed
  • – Ordering the total amount owed to be paid in full or by instalments
  • – Ordering enforcement of the obligation
  • – Preventing the disposal of property or wasting of assets by the payer
  • – Suspending the enforcement of an obligation
  • – Making an order for costs

A respondent can be penalised for failing to comply if they fail to:

  • – Serve a financial statement
  • – Produce copies of a documents to the applicant
  • – Answer a question asked of them
  • – Give an answer to the Court’s satisfaction2

A refusal or failure to comply may amount to be a contempt of court or an offence.

Appehended Violence Order

What is an AVO?

An AVO is an apprehended violence order intended to protect individuals who are fearful of future violence or threats to their safety. These orders are sometimes referred to as restraining orders or protection orders and set out restrictions on the other person’s behaviour.

An Apprehended Domestic Violence Order is made where the people are related or have had a domestic relationship. An Apprehended Personal Violence Order is made where the people involved are not related or do not have a domestic relationship.

What to do in the event of a breach of an AVO?

If the defendant breaches the AVO you should report the breach to the police as soon as possible. The police have the power to arrest the defendant and charge them with the criminal offence of contravening the AVO (or breaching the AVO). Depending upon the circumstances the police may also choose to charge the individual with other criminal offences such as assault or malicious damage. The defendant will be issued a Court Attendance Notice and will be required to attend court to answer the criminal charges.3

Penalties for breach

Contravening an AVO is a criminal offence and if an individual is convicted it carries a maximum fine of $5,500 and/or 2 years imprisonment in NSW. 4

Penalties vary across the states and territories. Any conviction for a contravention of an AVO will appear on the individual’s criminal record.Depending upon the severity of the breach and whether other charges have been made the individual in breach may be put on bail or have bail refused and be kept in custody.

If your circumstances have changed and you no longer require the AVO, you must make an application to vary the AVO in order to prevent accidental breaches. However if there are children under the age of 16 named on the AVO only the police can make an application to vary its terms.

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Should Children Be Interviewed for Family Reports?

on by
Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

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This is one response from the Expert Interview Series: Dr. Travis Gee. Refer to the table of contents for the whole series of questions posed to Psychologist Dr Travis Gee, on the topic of how Family Reports and the Psychology Industry in Family Law

  1. In producing a family report, the family consultant usually speaks to all significant parties involved in the case including the child/ren. How does such process likely affect the emotional well being of a child? Is it necessary for the child/ren to be included in such process?

family-reports-dr-travis-geeThis is something recently raised by Chief Justice Bryant 1, acknowledging the poor levels of contact between children and their supposed representatives in the court.

Looking specifically at the report writer, sometimes there may be 20 minutes or so contact, much as a psychiatric evaluation may take up to 90 minutes for the parents.

The paucity of what can be done in such a short time naturally leads parents to question how accurate the reports may be. Questions about accuracy necessarily raise questions about the validity of inferences drawn from such interviews.

To your question of how an interview may affect the child, it must be said that it will depend on a range of factors, not least of which is the presence or absence of alienation processes by a parent.

When an alienating parent targets the other parent and encourages false beliefs in the child in order to persuade the report writer (and others including the child) of things that are simply not true, the child’s reality testing processes can be strained.

Inculcation of false memories in children is not particularly difficult,2 and if the child adopts wholesale a fictional version of their relationship with the alienated parent, it can become a toxic subjective reality that may be held on to for life, costing him or her the benefit of a perfectly good parent.

In the words of lawyer Dr. Christopher Barden,“There can be no credible controversy about the power of parents to influence children.” 3

In the words of lawyer Dr. Christopher Barden,“There can be no credible controversy about the power of parents to influence children.”

If the child cannot quite come to believe it, there is room for the child’s reality testing to work, but then the child comes to see the alienating parent for what they are, and again,  a parent/child bond may be destroyed, sooner or later.

That is not to mention the deleterious effects of alienation across a range of areas of life including lower levels of achievement, less attainment of post-secondary education, greater unemployment, lower socio-economic status, attachment issues and consequent relationship issues and poorer self-esteem.4

The direct effect of the interview will also depend on the skill of the interviewer in eliciting information in a non-biased way. In other words, if the interviewer unwittingly plays into the hands of an alienating parent, leading questions may be used that may create or reaffirm objectively false subjective realities in the child (as noted above).

This is one reason that such interviews should always be recorded. Another reason is that a consultant who has an ethical obligation to ensure accurate recording can be held accountable, which will have the effect of ensuring that omission or misunderstanding of parts of the interview on the writer’s part can be corrected, either prior to finalisation of the report, or on cross-examination.

“The presence of an alienating parent needs to be factored in, to temper judgments about the value of that information”

Other effects may emerge from the failure of the consultant to fully inform the child that the results will be available to the Court and so, to the parents.  Parents may reasonably assume that the children were so apprised, and mention in passing conversation something that the child thought was a complete secret held by the consultant.

The feeling of having been ‘lied to’ (even by omission) in such a way may lead not only to disillusionment with the court process but a great sense of anxiety and personal responsibility for whatever deleterious outcomes may arise. This is especially true if the child has in fact repeated falsehoods supplied by an alienating parent, thinking that the target parent would not find out.

The need for children to be involved in the process diminishes as a function of their youth.  Children under about five years of age have more malleable memories that are more subject to re-constructive processes, leading questions, and alienation processes.

Memories are subject change every time they are recalled, and are sensitive to what is happening at the time, and the use of leading questions (even inadvertently) with younger children can produce misinformation that may be given unwarranted probative weight. As children get older, it becomes more reasonable to incorporate their evidence.

However, the most reliable evidence will not be historical factors about the he said/she said of the parents, but about their own internal states – their feelings and desires. Even then, however, the presence of an alienating parent needs to be factored in, to temper judgments about the value of that information.

  1. Children should have more say in family disputes, says top judge. Susie O’Brien, Herald Sun, 30/7/2014. ↩
  2. Loftus, E., and Pickrell, JE (1995) The formation of false memories. Psychiatric Annals 25 (12) 720-725. ↩
  3. Barden, R. C. (2006) Protecting the fundamental rights of children and families: Parental alienation syndrome and family law reform. In R. Gardner, R. Sauber, &  L. Lorandos. (Eds.), International handbook of parental alienation syndrome  (pp. 419-432). Springfield, IL:  Thomas. ↩
  4. Ben-Ami, N., Baker, A. J. L. The long-term correlates of childhood exposure to parental alienation on adult self-sufficiency and well-being. American Journal of Family Therapy 40.2 (2012): 169-83. ↩

How to Challenge a Child Support Assessment

on by
Nicole Neal

Nicole Neal

Online Legal Information Author at Family Law Express
I am a fourth year law student studying through the University of Southern Queensland. I plan to practice within the area of family or criminal law. I am driven by three core values: reliability, integrity and dedication and am motivated by my passion towards my chosen field of study.
Nicole Neal

Latest posts by Nicole Neal (see all)

child-support-calculatorA Child Support assessment is generally made when a child’s parents separate, providing the primary carer of the child/ren with sufficient income from the other parent in order to support and raise the child/ren. ( Read more on: How Child Support is Calculated )

The assessed sum for child support is the result of a calculation based on a number of factors, reflecting the familial, carer and financial circumstances at play, and this formula has been revised numerous times since its original implementation back in the 1970’s.

As of March 2014, the Abbott government has announced a new parliamentary inquiry into the child support system 1, with a particular emphasis on under or over payments, enforcement options for payments, flexibility for families, providing the best options for children in conflict situations, and links between the child support program and the Family Court. 2

Every new iteration of the child support formula aims to provide a better, fairer system that is in sync with the financial realities and broader expectations of society at that time, however significant complaints are ongoing with many parents claiming that the formula has become too complex and difficult to navigate, and many others complaining of significant inequities.3

The very nature of child support leaves itself exposed to tensions and complaints, given that it provides financial support for children in often very acrimonious circumstances.

An assessment can be challenged by both the parent that pays the amount to the sole guardian, as well as the guardian who receives the payment.

Who can challenge

As explained within the Child Support (Assessment) Act 1989 (Cth),only a person who has at least shared care of the child can challenge an assessment of Child Support. 4‘Shared care’ is described as providing a percentage of care of at least 35% 5 and is calculated depending on the number of nights per year the child is in the care of the person. 6 A person who has consent from either a parent or a legal guardian to care for the child would also be considered eligible. 7

Why challenge?

You may want to have a Child Support assessment reviewed if you believe that:

  • Incorrect information was used;
  • Not all the relevant facts were considered;
  • Relevant details have been overlooked or new information has become available;
  •  The appropriate law or policy was not applied correctly; or
  • Given the circumstances of the case, the wrong decision was made.

What can be challenged

Most Child Support decisions can be challenged; including the annual rate the carer is entitled to, the costs of each child and the taxable income of each parent. 8 However, the identity of the child/children’s parents and the collection process are two (2) decisions that cannot be disputed through this process.

Levels of review

Before formally applying for a challenge of the assessment, it is recommended that you call the Child Support Agency and discuss your concerns surrounding the payment. This may eliminate any lack of understanding and may present available options that you were unaware of.

1st Level

The initial formal application for challenge must be made to the Child Support Agency as a written application asking the Registrar of Child Support to evaluate the current situation. 9 The Registrar will allow the assessment to be changed if they are satisfied that it is in the best interests for the child, the payer and the payee to do so, and that it is necessary. 10 If the Registrar decides not to change the current assessment or if you are still not satisfied withthe changes made, an objection may be made to the Child Support Agency.

2nd Level

If the Agency refuses the objection, there are two further options available. The first is to apply for a review of how the decision was made according to the law through the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR)). Under this option, the court will review whether the applicable law was applied to the decision correctly and if the decision-maker used their power in the proper way. 11

The second option is to apply for a review of the decision based on the facts through the Social Security Appeals Tribunal (SSAT). 12 The application must be in writing, sent within 28 days of receiving the objection decision 13 and may be made by either parent.This level of review is inexpensive, quick and is is conducted by a party that is independent of the Registrar.

3rd Level

If you are still not satisfied with the decision reached by the SSAT, an application for further review by either the Family Court or the Federal Circuits Court may be made. 14 However, the appeal can only be made on a question of law (i.e. how the law or legal principles were applied or whether the process was legally correct NOT the facts of the case). Again, this must be lodged within 28 days of receiving the notice of the previous decision. 15

The court then has the power to make an order,which may set aside the decision of the SSAT, affirm the decision of the SSAT, or direct the case back to the SSAT to make a new decision. 16 The effect of the order handed down from the court then takes effect immediately. 17

From the Family Court, the matter can then be challenged through the Full Court of the Family Court and then through the High Court of Australia. If the decision was disputed within the Federal Circuit Court, it can then be taken to the Federal Court, followed by the Full Court of the Federal Court, and finally the High Court of Australia. Although, keep in mind that the fees for each challenge will dramatically increase with each application to a higher court.

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    Bibliography

    1. Parliamentary Inquiry into the Child Support Program  ↩
    2. Abbott government to launch inquiry into child support system  ↩
    3. Child support formula baffles 90% of parents – study  ↩
    4. Child Support (Assessment) Act 1989 (Cth) s 7B(1). ↩
    5. Ibid s 5(2). ↩
    6. Ibid s 54A(1). ↩
    7. Ibid s 7B(2). ↩
    8. Ibid s 80(1). ↩
    9. Child Support (Assessment) Act 1989 (Cth) s 98B(1). ↩
    10. Ibid s 98C(1), 117(1). ↩
    11. Child Support (Registration and Collection) Act 1988 (Cth) s 89.   ↩
    12. Child Support (Registration and Collection) Act 1988 (Cth) s 89. ↩
    13. Ibid s 90(1). ↩
    14. Child Support (Registration and Collection) Act 1988 (Cth) s 110B. ↩
    15. Federal Circuit Court Rules 2001 (Cth) reg 25A.06. ↩
    16. Child Support (Registration and Collection) Act 1988 (Cth) s 110F. ↩
    17. Ibid s 110V. ↩