The Family Court – The “Helping Court”- Is The Court Becoming Tougher?

Most people would appreciate that if you have a right to take someone to court it is a good idea to do that without delay.  For personal injuries, there is a time limit of 3 years and for breach of contract, 6 years to go to court. 

The time limits in family law are much shorter, one year from a divorce order taking effect for a married couple (a divorce can’t be granted unless the couple has been apart for one year) and two years from separation for a de facto couple.

The short family law time limits are for practical reasons.  The longer a couple is separated the harder it can be to untangle their finances; even if they kept things separate there might still have to be an accounting.  What they each had at separation, and what happened in relation to income and assets before and after separation will likely need to be considered.        

Recently a party in Wellard & Hawthorn [2021] FedDFAMC1A (the names are changed to protect the privacy of the parties) complained of significant difficulty in bringing their application in time and asked the Court to extend the time, arguing that they would suffer hardship. While the Court could have granted the application, the court refused the extension of time, allowing the other party to avoid a financial accounting.

lawyer with couple at desk

The Family Court of Western Australia was set up when ‘no fault’ divorce was introduced in 1975 to be the “helping court”.  Even if it is no-one’s fault a relationship has failed, it can be difficult for parties to move on and deal with their situation. 

Since 1975, the Family Court system has been greatly expanded to include de facto relationships, relationships that are treated just like a marriage even if the parties are not married and didn’t have a party to celebrate their union.

Arrangements for children have become more complex too, where the principles guiding how parties should make arrangements for their children changed in 2006. Now both parents are expected to be involved in their children’s lives, as long as that is in their best interests.   In 2012, the Family Law legislation was amended to reflect a greater understanding of the endemic presence of family violence.    

Does the recent decision send a message that the Court will not tolerate parties seeking more time to come to the court unless they can make out a strong case?  Is the court becoming stricter than it might have been in the past, where the pressures on the court’s limited resources are unrelentless? Possibly yes.    

A stricter approach could have a heavy impact on de facto couples, where their circumstances tend to be less formalised than married couples.  In Western Australia despite the best efforts of family lawyers in seeking reform of the law so it falls in line with every other state and territory, superannuation splitting is still not available. Legislation to provide for super splitting has been drafted but not yet passed by the Western Australian parliament.     

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Rhonda Griffiths at rgriffiths@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a fixed fee price basis.

Navigating The Family Court After Family Violence

family court lawyer signing

The Family Court and Family Violence

Separation is an extremely difficult time. Those difficulties, and in some cases dangers, can be exacerbated for those who experienced family violence in their relationship. We discuss navigating the Family Court in WA after family violence.

Parties at the end of a relationship involving family violence may find themselves involved in proceedings in the Family Court of Western Australia, if they cannot agree about the post-separation arrangements that are in the best interests of their children.

For many, the Court process is daunting. Fear and intimidation from a former partner add to the stress and anxiety that most people experience while Family Court proceedings are on foot.

In the Family Court of Western Australia in 2020, Family Consultants conducting assessment conferences identified family and domestic violence as a risk issue in 82% of cases.[1]

The purpose of this article is to outline some of the resources and special arrangements available for those who have experienced family violence and are involved in Family Court proceedings. It is not an exhaustive list of resources or arrangements available.

Definition of Family Violence

Under the Family Law Act 1975 (the legislation that applies to married couples in Western Australia), family violence means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, but are not limited to:

  • An assault
  • A sexual assault or other sexually abusive behaviour; or
  • Stalking; or
  • Repeated derogatory taunts; or
  • Intentionally damaging or destroying property; or
  • Intentionally causing death or injury to an animal; or
  • Unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
  • Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
  • Preventing the family member from making or keeping connections with his or her family, friends or culture; or
  • Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Exemptions from Family Dispute Resolution

The Family Court encourages parties to reach agreement about what is in the best interests of their children, before applying to the Court for orders. To that end, to apply for Family Court orders, generally, parties must attempt Family Dispute Resolution first.

That requirement does not apply where there has been family violence, and parties may proceed with making an application for parenting orders by completing the relevant exemption form.

Special Arrangements for Court Attendance

Usually, during Court proceedings before a judicial officer, both parties are required to be in the same Court room and will usually wait in the same area for their matter to be called. For those who have concerns about their safety, the Court can make special arrangements for their attendance, including:

  • Attending from an offsite location by telephone.
  • Attending from an offsite location by video-link.
  • Attending from an onsite location (in a separate room to the other parties) by video-link.
  • Separate waiting areas inside the Court.
  • Separate entry and exit points from the Court building, or
  • A security escort to and from the entry to the Court building to the Court room.

It is important to provide the Family Court with advance notice of any special requirements, so they have time to process your request.

Cross-Examination Scheme

Most people settle their family court matter without needing a trial.

If a trial is required to determine parenting or financial matters, or both, then provided certain circumstances are met,[2] the Court will not permit one party to cross-examine the other. Instead, any self-represented party would be allocated a legal practitioner to conduct the cross-examination, funded by the Commonwealth Government.

In WA, the funding scheme can presently be accessed by litigants who were married to each other and is run by Legal Aid WA.  On 9 December 2021, the funding scheme will extend to WA litigants who were not married to each other.[3]

Behaviour Change Programs

Where appropriate and in the best interests of the children, the Court has the power to order parties who have perpetrated family violence to enrol in and attend behaviour change programs and parenting courses.

Services Outside of The Court System

Outside of the Family Court system, there are a range of services available for parents and families who have experienced family violence. They include:

You may also be eligible to apply for a Family Violence Restraining Order.

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Kori O’Meehan at komeehan@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a Fixed Fee Price basis.


[1] Family Court of Western Australia Annual Review 2020, at p 13

https://www.familycourt.wa.gov.au/_files/Publications_Reports/FCWA_Annual_Review_2020.pdf

[2] see section 102NA of the Family Law Act 1975 for married couples

[3] See sections 219AJ – 219AL of the Family Court Act 1997. The Family Court Amendment Act (WA) 2021 No 16 of 2021 received Royal Assent on 9 September 2021.  Under Division 3 of that Act, the Commonwealth cross-examination scheme will apply to de facto couples from 9 December 2021 onwards.

 

Family Law: Lawyers and the Bank of Mum and Dad

laywer with couple and paperwork grant of probate

Why is it important to know about Lawyers & the Bank of Mum and Dad? The Australian Financial Review reported (8-9 May 2021) that parents are now among the nations’ top 10 lenders for home loans.  Remarkably, data shows more than 60% of first home buyers are getting assistance from their parents to get into their first home.

How should the families concerned, mum and dad and their adult child and possibly their child’s partner, document such financial assistance?

Binding Financial Agreement (BFA)

What about a Binding Financial Agreement (BFA) for the happy couple, each requiring their own separate lawyer for advice? Another newspaper (The Australian) the same weekend carried comment from family lawyers recommending BFAs where there are Mum and Dad loans.   

A BFA might provide that in the event of a separation of the couple, the loan from Mum and Dad be repaid, or not, and by whom, but is a BFA is the right solution?    

Remarkably, no one knows how successful BFAs are for most couples.  There is no record of the numbers of BFAs done in Australia. The University of Sydney (UTS) has in April 2021 Family Law Section Newsletter invited lawyers to take part in a project involving academics from several universities to gather data and report about BFAs.   

In the 20 plus years since BFAs were first permitted there has been significant litigation between the couples to the BFA and sometimes including their lawyers, that ironically BFAs are intended to prevent.    

A more immediate solution could be a formal contract between the Bank of Mum and Dad and their adult child and possibly their child’s partner, as to the terms of the loan.  Some of the loans will be ‘gifts’ and/or required to be gifted as part of the deposit requirements for the primary housing loan, so what happens then? On any basis, financial planning and legal advice should be considered by all parties.  

Our Family Law team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system and navigate through Lawyers & the Bank of Mum and Dad. 

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

AMICA – Can A.I Replace Family Lawyers?

Amica is a new initiative supported by the Australian Government. It is designed to assist couples to resolve their parenting and/or financial issues following separation. It is a great initiative for couples who can “get along” as they come apart.  For others, it is less helpful.

According to the website, Amica:

  • provides separating couples with a user-friendly platform to work out and record parenting arrangements that work for their family.
  • uses artificial intelligence to make suggestions about dividing money and property (considering legal principles) based on the information that is entered by the parties.

The website claims that Amica “should suit most separating couples”.  These are some of the situations listed where Amica is not going to be suitable:

  • There is a Family Violence Restraining Order in place between the parties.
  • A limitation period will expire in the next 3 months.
  • There is a genuine dispute about the validity of the relationship.
  • One of the parties to a relationship or marriage is on a visa or seeking a visa which is dependent on their relationship with their partner.
  • There are any existing court orders in place about parenting arrangements for any children of the relationship.
  • There are ongoing cases or allegations in any court involving family law, child support, family violence or child welfare that involve either parent, or a child of the relationship.
  • One of the parties wishes to relocate with a child of the relationship.
  • Either party wishes to divide superannuation.
  • There are any genuine disputes over what is included in the property pool.
  • Any property of the relationship has been disposed of (such as sold or transferred) without consent of both parties.
  • There are caveats or charges lodged over any property in the property pool.
  • Assets in the property pool are held in a company or trust.
  • One party is a director of a company that forms part of the property pool.
  • Where either party owns or partly owns property or other assets overseas.
  • The property pool includes property which is also owned by a third party.
  • Either party currently has bankruptcy proceedings against them, or if either party was bankrupt during the relationship, or if either party is an undischarged bankrupt.

While Amica appears to be a great initiative, it is not the end of family lawyers by AI.  Amica does not give legal advice. In our experience, it is very rare to encounter a matter which does not involve at least one of the complicating factors listed above, making Amica unsuitable for most separating couples.

Importantly, even if a separating couple can reach agreement using Amica, it is not legally binding. All information exchanged between parties is done so on a “without prejudice” basis, meaning the information disclosed via Amica cannot be used in Court proceedings.  

Here at Bowen Buchbinder Vilensky, we encourage our clients to reach an amicable resolution to their family law issue, whether it be divorce, parenting arrangements or property division.

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

Family Law: A Complex And Private Legal System

executors perth three people sitting at a table looking over documents

In Australia all separating couples, are subject to a family law system that is both “bifurcated” and private. 

We can read about Angelina Jolie and Brad Pitt’s divorce and separation process in the media, and learn that in California Angelina and Brad are subject to a “bifurcated” legal system. But you will not usually learn details about local celebrities’ divorce settlements.

The fact of a separation or divorce and general details can be published but that is because it is not about family court litigation or “proceedings”.  

Section 121 of the Australian Family Law Act makes it an offence to publish details of separating couples’ court cases.    

Sometimes when media outlets have sought permission, the Court grants leave for the publication of details concerning a case, or the Court itself directs publication when pseudonyms rather than the real names of the parties are used.  On other occasions, real names are necessary, for example, if there is a missing child.

The embargo on publication means not only can details about a family law case NOT be published in the media but also NOT on social media. 

A bifurcated divorce in California means “they are legally divorced, but are yet to decide on child custody and financial arrangements”.

In Australia, the Family Law Act provides that a person can apply to the court (or negotiate a settlement without going to court) as soon as they separate, but can only apply for a divorce after 12 months has run.

That is how a bifurcated system operates, where the processes are separated into separate branches or parts.  In Australia there are three parts to the system, including a separate child support system.

Services Australia Child Support decides financial obligations for children after separation, separately from Family Court property settlement and spousal maintenance.  Spousal maintenance (rarely used in the 21st Century) is usually resolved at the same time as property settlement. Spousal maintenance can be obtained and very rarely, after property settlement.

Divorce (the right to remarry without committing bigamy) often follows later, after the hard work of financial settlement and arrangements for the children has been done. 

This complicated system is private, to protect the individuals and families involved. 

People can take steps and make decisions or seek legal process to assist them, using those parts of the system that they need at that time.  But there are pitfalls that require experience and expertise in family law to negotiate.

The confidentiality of the system means that general public knowledge of family law in Australia is limited, scattered and often ill informed.

Our team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system as best suits them.