How to Prepare for The Family Report Interviews?

A Family Report is a report prepared by an expert, such as a psychologist, psychiatrist or social worker, who will analyse and assess what the most appropriate parenting arrangements are for your children. A family report could be ordered by the Court and take place either in the Court building (with a Court-appointed expert) or with a privately paid expert. It is common too for parties to obtain a family report without being engaged in active court litigation.

Part of this process will involve the Family Report writer meeting with you, your children, the other parent and any significant other person in the children’s relationship (such as your current partner, any of the children’s half-siblings or step-siblings or grandparents). 

The family report is an important piece of evidence for your parenting case, so it is important that you are prepared for the interview.

Below are 8 things to consider when preparing for your family report interview:

1. You should be able to articulate what it is you are seeking in terms of the children’s arrangements. If you are in Court, you should be able to explain what Orders you are seeking and why they are in the children’s best interests.

2. Ensure that you know the date, place and time of your interview. If it is a court-appointed expert, make sure that you attend the correct Court and if it is a private expert, make sure you know where the interview will take place. Make sure you arrive on time.

3. Dress smart, and it is not necessary to wear business attire.

4. Consider whether you are being overly critical of the other parent and how that may reflect on you.

5. Ensure that you have enough food and drink for yourself and the children. It is also important to bring along any toys or games that you enjoy with the children for the observations, depending on how long you will be there.

6. You may wish to re-read the evidence that is currently before the Court. This includes your and the other parent’s affidavits, Notice of Child Abuse, Family Violence or Risk and any expert evidence already before the Court (such as a Child Impact Report). You will likely be asked questions based on the evidence that is filed and it is important that you can recall those events.

7. Depending on the ages of the children, you may need to tell them that they will be meeting with the family report writer, but you should not be telling them what you want them to say. There are helpful brochures on the Federal Circuit and Family Court of Australia website about how to approach discussing the family report with children of different age groups. 

8. Remember that nothing you say or do is confidential and whatever you say could be written in the family report, and therefore seen by your ex-partner, Independent Children’s Lawyer, your solicitors and the judge.

If you would like specialist legal advice about the family report interview process, please contact Robinson + McGuinness today to arrange an appointment on (02) 62257040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Catherine Finucane, Associate

Moving Forward and Moving Away: When You Seek To Relocate And The Other Parent Doesn’t Agree

When parents separate, they are still faced with the reality of co-parenting.  This can be challenging for parents to navigate following the breakdown of a relationship, when emotions are high and unresolved issues may remain.  This is especially challenging when one parent seeks to move.

The focus for parents should always be what is in the best interests of their children. When faced with a parenting matter, this is also the Court’s primary consideration (see section 60CA of the Family Law Act 1975 (Cth) (the Act)).  In determining what is in a child’s best interests, the Court will consider the matters set out in s 60CC(2) of the Act.

It is not recommended (nor usually condoned by the Court) for parents to relocate the residence of a child without the both parents agreeing to the proposed move; or without a Court Order allowing the parent to move with the child.

When a parent is seeking to relocate with a child, the Court will be interested in how the proposed move will impact that child; having regard to their developmental, psychological, emotional and cultural needs.  For example, a parent seeking to relocate will need to consider how the move will impact the child’s education.  The Court will be interested in understanding the child’s educational arrangements, including what year the child is in at school and whether they have special educational needs (for example, that can only be met in certain schools).     

In most cases, a proposed relocation is likely to have an impact on the care arrangements for the child, and the capacity for both parents to spend time with that child as they have been.  The Court gives consideration to the benefit afforded to the child of having a relationship with their parent, and other significant people. 

Parents should be able to identify how they will be able to support a relationship between the child and the other parent if they are (and/or are not) able to move.  The Court will be interested in the practicalities of the move, including what travel will be involved to visit the other parent and the costs of that travel.  

The moving parent should be able to clearly articulate how they will support the relationship between the other parent and any other significant people in the child’s life.  This may involve giving consideration to greater time with the other parent in the school holidays and communication (for example, video communication at set times and with regular frequency).

Where a parent has been subjected to family violence by the other parent, the Court will give consideration to whether the arrangements promote the safety of the child (and the caring parent).

In making a decision about relocation, there is (generally) no easy answer.  Discussions about resolving a matter will involve one parent compromising on their position significantly, or both.  The Court will ultimately balance the parties’ competing proposals and make a determination about what they consider is in the child’s best interests.

If you are considering relocating with your child, you should speak with a specialist family lawyer to understand your rights and obligations.  You can contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Anika Buckley, Associate

What you should know about Family Violence Orders

Anyone may apply for a Family Violence Order (an FVO) against a family member if they are in fear for their safety and in need of ‘immediate protection’.  The definition of ‘family member’ is set out at section 9 of the Family Violence Act 2016 (Cth).

Upon application, the Court may grant an interim FVO in the absence of both parties putting on further material before the Court.  An interim FVO will place certain restrictions and conditions on the respondent to the application, preventing them from engaging in family violence.  For example, this may include a prohibition on attending a protected person’s workplace or home; or a prohibition on contacting the person.

The respondent to an application for a final FVO may file an application to revoke the interim FVO, for example if the restrictions contained within the order are overly restrictive or they can demonstrate the applicant does not require the protection of an order.

An interim FVO can become final either by consent on a without admissions basis (meaning the Court has not made any findings); or at a final hearing, where the Court has ‘tested’ the evidence and made findings as to the respondent engaging in family violence against the protected person.

Unless there are ‘special or exceptional circumstances’, a final Family Violence Order will generally remain in place for a period of 1 or 2 years.  Sometimes, the protected person might agree to the order being in place for a shorter period (say 6 months).

If a protected person is still in need of protection and the FVO is due to expire, they can file an application seeking to extend the order.  In an application to extend the order, the respondent then bears the onus of proof to demonstrate that the applicant is no longer in need of protection.

If your FVO is due to expire, it is crucial that you take steps to seek an extension of the order prior to the order expiring.  If you do not apply for an extension until after your order has expired, you will face a ‘fresh’ application and the burden of proof remains with you as the applicant to demonstrate that you are in need of protection.

If you are considering applying for an FVO or whether to seek an extension of your order; or if you are the respondent to an application, you should obtain specialist legal advice. The ACT Magistrates Court website also contains valuable information, including frequently asked questions.  A lawyer will be able to help you collate your evidence and advise you about the merits of your case, including possible settlement options. 

Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.

For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.

Author: Anika Buckley, Associate 

Report into National Plan to End Violence against Women and Children speaks of significance of reform within family law

The Domestic Family and Sexual Violence Commission has recently released the 2022-2023 Yearly Report to Parliament, the Yearly Report since the release of the National Plan to End Violence against Women and Children in 2022.

Domestic, Family and Sexual Violence Commissioner, Michaela Cronin, states in the Foreward to the report that “serious concerns have been raised that government systems, including the family court and child protection are causing harm and that police too often misidentify women as the primary aggressor… when they are the person most in need of protection”. The Commissioner goes on however to say that “if we are bold and determined” it is possible to achieve their goal of ending domestic, family and sexual violence within a generation.

The Report speaks about family law reform implemented by the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 which are hoped will improve outcomes for women and children experiencing family violence, including:

1.      Removal of the presumption in favour of parents sharing parental responsibility, and the pathway to consideration of equal time arrangements in the event that parents share parental responsibility;

2.      Simplification of the factors that may be considered pursuant to Section 60CC of the Family Law Act in order to determine the best interests of children, and to place greater emphasis upon safety of children and their caregivers;

3.      Strengthening of provisions to prevent harmful or vexatious proceedings;

4.      Mandatory requirement for Independent Children’s Lawyers to meet with children, and seek their views;

5.      Improved information sharing between government agencies.

The Report speaks of the need for drastic improvements in funding in order to improve outcomes for women and children, noting that “the experience and outcomes of involvement in family law processes is also influenced by a person’s access to legal representation”.  Accordingly, there has been a greater call for increased funding to the community legal sector. The Report also speaks of the need for more targeted education regarding family violence for legal practitioners, and frontline workers, to assist in identifying and responding to family violence.

The release of the report also coincides with the announcement of Attorney General Mark Dreyfus on 30 August 2024 for a review of the Federal Circuit and Family Court of Australia Act 2021. The establishment of the Federal Circuit and Family Court of Australia in September 2021 was primarily directed towards improving efficiencies within the Court, in order to limit the duration of family law litigation. Amongst other things, the review will address the level of specialisation of judicial officers determining outcomes in family law litigation, however the Terms of Reference do not specifically call for a review of the family law system generally.

For family and domestic violence support and assistance, you can reach out to 1800 RESPECT via the National Helpline on 1800 737 732. For legal advice in relation to your family law matter, including family violence, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe, August 2024

Family Violence: What is it and how to apply for a Protection Order if you feel unsafe

In the ACT, the Family Violence Act 2016 sets out the pathway for a Registrar or Magistrate to make a Family Violence Order in favour of a party seeking protection.

What is family violence?

Family violence includes behaviour towards a current or former partner or spouse, or another family member involving physical, emotional, financial or sexual violence or abuse, as well as threatening or coercive and controlling behaviour. Specific examples of behaviour which constitutes family violence recognised under the Family Violence Act include exposure of a child or children to family violence, sexually coercive behaviour, damaging property and harming an animal.

How do I apply for a Family Violence Order?

An Application for Family Violence Order will be heard by a Registrar or Magistrate in the ACT Magistrates Court.

The Court will generally hear an application for an Interim Family Violence Order on the same day that the application is made. It is heard on an ex-parte basis, meaning that the Respondent is not put on notice that the application has been made until after the application for an interim order has been determined by the Court.

On what grounds may the Court make an Interim (Temporary) Family Violence Order?

The Court may make an interim order if satisfied that the order is required to:

1.      Ensure the safety of an applicant from family violence; or

2.      To prevent substantial damage to an affected person’s property.

If an interim order is granted, it will remain in place until such time as the application for a final family violence order has been determined, unless an application is withdrawn. An interim order should not however be in place for longer than 12 months.

After the application for an Interim Family Violence Order has been determined, the Court will conduct a preliminary conference in order to determine whether there are prospects of the matter resolving by agreement on a final basis. This may include an agreement for an Order being in place for a defined period; an agreement that no order will be made; or in an outcome where one or both parties make an Undertaking to the Court to refrain from engaging in family violence.

On what grounds may the Court make a final family violence order?

The Court may make a final order if:

1.      The applicant (the person seeking protection) has reasonable grounds to fear family violence by the respondent (the person that they are seeking to be protected from); or

2.      The respondent has used family violence against the applicant.

The Court can make a final order that is in place for up to two years, but if requested, the Court may make an order for a longer period of time if the Court is satisfied that there are special or exceptional circumstances that justify it.

Will the Family Violence Order only be recognised in the ACT?

Family Violence Orders are nationally recognised and there is no need to apply for separate orders in different states, if for example, you live between NSW and the ACT and wish to ensure that the Order operates irrespective of your location.

For advice in relation to a family violence application, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Is Family Violence relevant in Property Proceedings?

Family violence can absolutely be a relevant factor in property proceedings. Depending on the specific circumstances of each case, a person who has experienced family violence may find that they are entitled to a greater share of the asset pool than they might otherwise have received had they not been subjected to violence.

The effects of family violence can be relevant at several stages of the property settlement process, and must be considered in the context of the case as a whole. In some cases, one party may be able to demonstrate that their contributions to the relationship, either financially or otherwise, were impacted or made ‘more onerous’ by their experience of violence, and so should be given greater weight than the contributions of the other party. In other situations, one party may be able to demonstrate that their experience of violence has had an ongoing impact on their healthcare needs, or will negatively affect their ability to work or care for children into the future. This may lead to them receiving an adjustment in their favour to account for their greater future needs over and above those of the violent perpetrator.

The matter of Coad & Coad [2011] FamCA 622 is a clear example of a case where both of the above situations applied. In this matter, the parties were together for 10 years and had one child. At the time of separation, the Wife was severely assaulted by the Husband and he was convicted of attempted murder, intentionally causing serious injury, and endangering life in respect to a person who came to her assistance. He was sentenced to a lengthy term of imprisonment. During the incident, the Wife suffered a fractured eye socket and cheekbone, a broken nose, and was so severely bruised her child did not recognise her in the hospital. Her cheek had to be reconstructed with a titanium plate, she was not able to see properly for several months, and she had difficulty balancing, breathing and bathing herself. The Judge accepted that not only had the Wife’s injuries made her care of the child after separation more onerous than it ordinarily would have been, she had sustained life-long injuries that would continue to impact her capacity to work and care for her child. The Judge assessed the parties’ contributions at 60% to the Wife and 40% to the Husband, and awarded the Wife a 30% adjustment in recognition of her greater future needs meaning the Wife received 90% of available asset pool.

If you are experiencing family violence, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters. In the case of an emergency, you should call 000.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.