There’s no departure from the general news from the Court in reporting that it has been another very busy period for everyone.
Given recent media coverage of at least one matter before the Family Court, it may be timely to remind the readers of this newsletter of the Court’s policy that all of its decisions (judgments) are published online and are available to members of the public. This policy has been in place for many years now and it is to ensure that the reasons behind the Court’s decisions are transparent.
The judgments outline the background, the evidence and the facts presented to the judge(s) and the reasons behind the decisions that have been made. Unfortunately often what is presented in the daily news does not represent the ‘whole picture’ for the many difficult cases that come before us.
It is important to be aware that section 121 of the Family Law Act prevents the publishing of details that would identify parties involved in family law proceedings. However, the Court dedicates significant resources into ‘anonymising’ its published judgments to remove any identifiable material to ensure that the decisions are open and accountable. The judgments are available from both the Court’s website: www.familycourt.gov.au and www.austlii.edu.au
It goes without saying that the Court’s priority is to help families resolve their disputes following separation. However, an issue that also has been a preoccupation for the Court is the considerable financial pressure that has been growing for some years now. Despite the many savings initiatives and cutbacks that the Courts have implemented, it is an ongoing challenge to provide access to justice for all litigants whilst balancing that duty within the finite resources we have.
The Attorney-General, Nicola Roxon announced on 26 April that the Government will not proceed with the proposed merger of the Federal Magistrates Court and the Family Court. The Attorney stated in her address to the Federal Magistrates’ plenary that she believed that the Australian community is best served by a separate and distinct Family Court and Federal Magistracy.
This now provides a much clearer direction for the courts and we will continue to work on further clarifying the areas of work for each court – this can now be done with confidence in terms of the future direction of the courts. Specifically, the Government will now formalise the role of one CEO and the administrative arrangements between the two courts.
In addition to the work that the Family Court and the Federal Magistrates Court have been doing over the past few years, we are now working much more closely with the Federal Court. This has been formalised through a Heads of Jurisdiction Consultative Committee which has been established to discuss ways of increasing efficiency in the management of our courts.
An important initiative to advise on is the Sydney Family Law Settlement Service which is a joint initiative of the Law Society of New South Wales, New South Wales Bar Association, Family Court of Australia and the Federal Magistrates Court of Australia. Both courts fully support this initiative which is essentially using the skills of lawyers who have skills in family law mediation and conciliation to try a new way of resolving family law (property) matters for parties who are waiting for their matter to go to trial in the Sydney registry.
Many judges and staff members have been busy preparing for the implementation of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which commenced on 7 June 2012. The amendments do a number of things to strengthen the courts’ ability to deal with family violence. There is an expanded definition of what constitutes family violence and an amendment to the primary considerations in s60CC(1) to make it clear that when considering the benefit to the child of a meaningful relationship with both parents and protecting the child from harm, the latter will be the overriding consideration. The amendments also remove disadvantages to the disclosure of family violence including the repeal of the controversial so called “friendly parent” provision and section 117AB, which concerns mandatory costs orders where a person is found to have knowingly made a false allegation of violence or abuse. The Court has been focused on reviewing its Rules, updating forms and revising the Family Violence Best Practice Principles. Considerable work has also been undertaken with our Child Dispute Services and the work undertaken by our family consultants.
I have recently returned from attending the International Association of Women Judges, World Conference during which I was very pleased to have participated in a panel discussion shared with other female Chief Justices from around the world.
Together with Federal Magistrate Altobelli, I presented a paper at the Association of Family and Conciliation Courts in Chicago in June on the question of whether confidentiality in family dispute resolution has reached its used-by date.
A new book outlining the early history of the Family Court has recently been published. Born in Hope – the Early Years of the Family Court of Australia was written by academic Shurlee Swain and provides an insight into the first decade of the Court, based on dozens of interviews with those involved with the Court at that time. The Court has given a great amount of support in the development of the book and I believe that, as the years pass by, it is important to capture the impact that the establishment of the Court had on the Australian society at that time.
Chief Justice Bryant
Born in Hope, a book recalling the early history of the Family Court of Australia was released in April 2012.
Born in Hope was written by Shurlee Swain, a Professor of Humanities at the Australian Catholic University in Melbourne. Shurlee specialises in Australian social history with particular focus on religious, women’s, children’s and welfare history. The book was written as one of the outcomes of the Australian Research Council funded project The Helping Court: Examining the Early History of the Family Court of Australia.
Born in Hope includes interviews with both current and previous Family Court staff and captures the difficult early years of the Court, as it dealt with media criticism and acts of violence against its judicial staff. The book also highlights the ground-breaking nature of the Family Law Act 1975 which introduced the concept of ‘no-fault’ divorce.
Chief Justice Bryant was honoured to be invited by the Rt. Hon. Lord Justice Thorpe, Head of International Family Justice for England and Wales, to deliver the International Family Law Lecture in London on 1 May 2012. The Chief Justice delivered a 45 minute paper entitled ‘An Australian Perspective on the Family Justice Review’. The Family Justice Review began work in 2010 and was jointly sponsored by the UK Ministry of Justice, the Department of Education and the Welsh Government. It was established in recognition of increasing pressure on the family justice system, alongside concerns about delays and effectiveness. The final report was delivered in November 2011. The discussion of private family law in the report, and particularly whether any change was required to the substantive law to be applied in children’s cases, was greatly informed by Australia’s experience of the 2006 shared parenting reforms. The Chief Justice therefore chose to explore what constituted the ‘Australian experience’, whether that was understood by the authors of the UK Family Justice Review and whether there was still a place for legislative intervention to promote shared parenting.
An edited version of the paper will be published in a forthcoming edition of the eminent UK law journal, Family Law.
The Chief Justice also made a joint presentation with Federal Magistrate Altobelli at the 49th Annual Association of Family and Conciliation Courts (AFCC) conference in Chicago in June 2012. The conference theme was ‘Attachment, Brain Science and Children of Divorce: The ABCDs of Child Development for Family Law’. The Chief Justice and Federal Magistrate Altobelli presented on the topic of confidentiality in family dispute resolution processes, drawing from the Family Court’s experience in non-confidential counselling through the Child Responsive Program. In addition to acting as a presenter at the conference, the Chief Justice is also a member of the AFCC Board of Directors and attended a board meeting while in Chicago.
Garning has received prominent media coverage in recent weeks. As is well known now, the mother in this matter wishes to live in Australia with her four daughters, all of whom were born in Italy. The mother and children left Italy on 23 June 2010 and have not returned since. The father, via the State Central Authority, is seeking repatriation of the children under the Hague Convention, incorporated into Australian law in the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”).
The State Central Authority made application for the children’s return on the basis that the children had been wrongly retained in Australia pursuant to reg 16(1A) of the regulations. It was common ground between the State Central Authority and the respondent mother that the first three limbs of reg 16(1A) were satisfied. The children were under 16 and did habitually reside in Italy, which is a “convention country” (regs 16(1A)(a), (b)). The children’s father did have rights of custody in Italy under a “consensual separation agreement” approved by the Italian law courts (reg 16(1A)(c)).
Forrest J found that retention of the children in Australia was in breach of the father’s rights of custody (reg 16(1A)(d)). The father was joint custodian of the children, and the consensual separation agreement provided for the girls to spend time with him one afternoon a week and on weekends. The mother argued that because the father would often focus on playing computer games when the girls stayed with him, and would sometimes forgo the girls’ visits altogether, the father was not “actually exercising” his rights of custody. Forrest J held that this argument was misconceived. While the mother’s assertions might go to the nature of the paternal relationship, the father was spending time with the children according to his rights of custody and was “actually exercising” those rights (reg 16(1A)(e)). Forrest J therefore concluded that the retention of the children in Australia was wrongful.
By reg 16(1), once wrongful retention was established, Forrest J was compelled to make an order for return of the children – so long as none of the circumstances outlined in reg 16(3) applied. If a factor or factors outlined in reg 16(3) applied, then a return order would not be compulsory and would instead be at his Honour’s discretion. The mother made a number of submissions directed at reg 16(3) factors. None were made out.
His Honour found that the father had neither consented to the relocation of the children to Australia nor acquiesced to them remaining here. While the father apparently did, for two days in April 2011, consider halting the litigation in favour of negotiation with the mother, his Honour held that, as a matter of law, fleeting or momentary acquiescence, later withdrawn, does not constitute sufficient acquiescence. Further, while “concerned that the father’s authoritarian style of parenting might not create the ideal environment for a completely healthy development of these four young girls”, his Honour was unable to find, on the evidence, that there was a grave risk that return of the children would expose them to harm or place them in an intolerable situation (at [101]). His Honour observed that “ongoing parenting arrangements can clearly be the subject of further consideration in the courts of Italy” (at [101]).
As to the children’s stated wish to remain with their mother in Australia, his Honour indicated that he got “no impression… that the girls’ objection to being returned… shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes” (at [116]). This was especially so given that the children had indicated to the family consultant that they missed school, friends and family members in Italy. It was also the family consultant’s professional opinion that the children, especially the younger two, lacked a fully-formed capacity to predict the impact of their “choices or views” on their future relationship with their father (at [119], [120]). His Honour therefore found that the four children had not reached an age and a degree of maturity at which it was appropriate to take into account their views.
Having found that none of the reg 16(3) factors applied, Forrest J was required to order the return of the children to their home country. Under the Hague Convention and in accordance with the regulations, Italy was the appropriate forum for the mother to pursue her parenting dispute and seek an altered parenting arrangement with the father, should she wish to do so.
* Note that this matter was the subject of extensive media attention in May following the mother’s refusal to facilitate the return of the children to Italy.
The mother appealed to the Full Court. On appeal, she asserted that Forrest J had wrongly rejected evidence in the form of a written statement by her friend. This friend had allegedly witnessed the father signing for the children’s passports and acknowledging the permanency of the move. On this narrow basis, the mother challenged Forrest J’s finding that the father had not consented to relocation.
The Full Court (Bryant CJ, Faulks DCJ and Coleman J) observed that the written statement was not in admissible form, and noted that the mother had “had ample opportunity” to obtain the witness’ evidence as an affidavit (at [46]). Indeed, Forrest J “did endeavour to explain [to the mother] on several occasions the problem with the absence of corroborative evidence” (at [47]). The Full Court therefore held that “[h]aving given no explanation as to why she had not obtained a document in admissible form, we cannot see that his Honour was under any obligation to effectively invite the mother to tender a document which she had herself asserted was inadmissible” (at [47]).
The mother’s application to adduce the witness statement as further evidence before the Full Court was also refused. The evidence was still not in the form of an affidavit, and had not “been sworn or affirmed or notarised in any way” (at [59]). Further, the mother had not met the test of establishing, in the context of the other evidence at first instance, that the further evidence would have produced a different result had it been available in the proper form.
The appeal was therefore dismissed.
* Note that this matter was the subject of extensive media attention in May following the mother’s refusal to facilitate the return of the children to Italy.
Camden, also a Hague Convention case, provides guidance on the legal test for habitual residence under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”). Factually, the issue in this case was whether the parties had taken up habitual residence in the United Kingdom (“UK”), given that they had only emigrated from Australia a mere 10 months earlier.
The mother was an Australian citizen by birth and the father a permanent resident, having moved to Australia from the UK. In April 2006, the parties were wed in Australia, where they remained for a further four years. The two children of the marriage were born in Australia during this time. On 20 July 2010, the family migrated to the UK so that the children could get to know the father’s parents and extended family. The first instance judge found that the mother had difficulties after the move and it was doubtful the mother had integrated into life in the UK. Her Honour also found that the family had trouble establishing a stable financial foothold in their new country. On Monday 9 May 2011, the father revealed that he wanted a divorce. Three days later, on Thursday 12 May 2011, the mother left for Australia with the children. The father, via the State Central Authority, sought the return of the children to the UK for the purposes of having the parenting dispute resolved in that country.
The first instance judge held that the parties had not established habitual residence in the UK, and therefore the regulations did not require the return of the children because their removal to Australia was not wrongful. The State Central Authority appealed.
On appeal, the Full Court of the Family Court (Finn, Strickland and Forrest JJ) observed that the High Court authoritatively settled the principles governing an assessment of habitual residence in the decision of LK v Director-General, Department of Community Services (2009) FLC 93-397. The Full Court clarified that Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 did not establish a new, two-limbed test in place of that enunciated in LK, and to the extent that Zotkiewicz applied a “twofold” analysis, it was an analytical methodology factually confined to that case only (at [53]). What LK required was a “broad factual enquiry” (at [57]) directed to whether there is a connection between the child and the alleged country of habitual residence (at [22]).
As the judge had approached the question of habitual residence in two stages, the Full Court held that her Honour had fallen into error. The Full Court found that after making the “very significant” finding that the parties had a settled, shared intention to make a new life in the UK, her Honour then focussed “in an apparently singularly determinative manner” on the mother’s social integration and the couple’s financial viability in the UK (at [54]). In this way, her Honour erred in attributing excess weight to two discrete factors and insufficient weight to other relevant findings, such as the shared intention, the mother’s full-time employment in the UK and the purchase of a car and household goods for the parties’ UK residence.
The Full Court allowed the appeal and remitted the matter for rehearing.
In Martin & Newton, the appellant husband was sole director and shareholder of a company involved in medical research and the provision of medical services. The company assets, valued at $2,796,026, were constituted by philanthropic and pharmaceutical industry grants in support of the company’s internationally-renowned research. One of the issues considered by the Full Court of the Family Court was whether the company assets should be treated as property within the marital pool, given that the husband had a “moral obligation” to direct those funds towards the company’s research.
At first instance, the judge found that the company assets were at the disposal of the husband and within his control, that the husband was under no specific legal obligation to use the funds in any way other than as he elected, and that there could be no third party claim against the funds recognisable at law. His Honour went on to conclude that the company assets formed part of the husband’s personal assets, in part because of the mingling by the husband of company and personal finances.
In total, the husband’s assets were found to amount to $4,271,977 (inclusive of $1,084,709 superannuation). The wife’s assets were worth $2,028,740 (inclusive of $45,919 superannuation). His Honour subtracted the superannuation from each of the individual pools and combined the residual amounts to form a collective pool of $5,170,089. This final pool was distributed 37.5% to the husband and 62.5% to the wife on the basis that contributions were equal but the wife was entitled to a s 75(2) spousal maintenance adjustment of 12.5%. Each of the parties retained their own superannuation, this having been factored in as part of the s 75(2) adjustment.
On appeal, the husband argued, inter alia, that the company assets should not have been deemed to form part of his personal asset pool available for distribution between the parties. He asserted that he was under a legal and/or moral obligation to direct those funds to his company’s research activities.
In their joint judgment, Bryant CJ and Thackray Jaccepted the premise that “the legislative scheme… is cast sufficiently widely to allow the court to take account of moral obligations… [where] we use ‘moral’ in its normative, rather than its descriptive sense” (at [226]). Their Honours went on to say at [227] that:
…it would offend justice and equity if funds provided by a third party for a public benevolent purpose were to be regarded as available for distribution in a settlement between a husband and wife merely because the donor had not ensured the donation was accompanied by sufficient legal safeguards to guarantee it was expended on the intended purpose.
This means that where a party has a moral obligation to utilise funds in a certain way, even absent a legal obligation, those funds might be cordoned off from the parties’ collective assets. However, the bare existence of a moral obligation will not be sufficient to ensure that the funds will be withheld from distribution. The court must look to the “probability of the [party] carrying out [their] stated intention” of using the funds in accordance with their moral obligation (at [224]). Their Honours opined that where funds would not be directed to their intended purpose, those funds “could properly be treated in the same way as any other assets” (at [228]).
Bryant CJ and Thackray J found that while the first instance judge had accepted the existence of a moral obligation to use the funds for research, his Honour had not gone on to assess the probability that husband would actually deploy them for this purpose (at [229]). Their Honours acknowledged that “it might be suggested it was implicit in the trial Judge’s reasons that he had formed such a poor view of the husband that he did not accept the … company money would be spent on research”. However, their Honours were ultimately unable to conclude that the necessary finding had been made (at [244]). In their Honours’ view, it appeared that the judge’s decision to coalesce company funds into the matrimonial pool was based entirely on “rejection of the proposition that the husband had a contractual obligation to spend the money on research” (at [244]). In their Honours’ opinion, this constituted appellable error.
Strickland J also sat on the Full Court in this matter. His Honour arrived at the same result as Bryant CJ and Thackray J, but for different reasons. On the prospect of moral obligations informing the identification of matrimonial property, his Honour was in firm dissent: “For my part once a conclusion is made that the assets are the property of the husband and he can use those funds as he pleases, that is the end of the matter” (at [353]). Thus, as the husband held both legal and beneficial interest in the company assets, “the question of whether a moral obligation exists and whether or not that obligation is likely to be carried out cannot prevent a finding that the … assets were property available for distribution between the parties” (at [358]). His Honour opined that the proper time for evaluating the husband’s moral obligations, and the likelihood of those obligations being fulfilled, was as part of a s 75(2)(o) analysis, as a fact or circumstance which the justice of the case requires to be taken into account (at [365]).
The appeal was unanimously allowed and the matter remitted for rehearing.
The 15th National Family Law Conference is set to take place in Hobart Tasmania, from 14–17 October 2012. The conference is organised by the Law Council of Australia and its Family Law Section and is one of Australia’s largest and most prominent legal professional development events.
This year’s conference will consist of three days of concentrated sessions and meetings and is expected to attract over 800 representatives from the family law area including judicial officers, solicitors and key personnel from federal government agencies and departments.
For more information or for booking details visit www.familylawhobart2012.com.au
On 25 January and 3 February, Brisbane played host to delegates from the Bhutanese Court system. The delegation included five judges including a High Court justice and five attorneys. The visit was organised through the Queensland University of Technology’s (QUT) Faculty of Law and AusAID.
Prior to the delegation’s visit, members from QUT visited Bhutan to identify the learning and developmental needs of attorneys and opportunities for legal education and development. The international aid program seeks to improve the administration of justice and capacity building in Bhutan’s emerging legal system.
Justice Murphy and James Cotta (Regional Registry Manager) met with the judges and attorneys and introduced them to the systems operating in court and the registry. The delegation was interested in how the judges and federal magistrates ran their matters, their approaches in dealing with such complex matters and the management of self represented litigants. Of particular interest was the role of the Independent Children’s Lawyer and Family Consultants in providing assistance to the Court in progressing child-related matters.
The delegation was also impressed with the courts’ eFiling systems. They saw this as an excellent opportunity for their own courts. Due to Bhutan’s landscape, judges and attorneys will often spend days travelling by car to hear matters or meet with litigants.
The delegation was extremely grateful for the support and information provided and were honoured to meet with the judicial officers of both courts.
The Commonwealth Government has now legislated to provide certainty for de facto property and maintenance orders made by the Family Court of Australia and the Federal Magistrates Court of Australia between 1 March 2009 and 10 February 2012 (1 July 2010 to 10 February 2012 in South Australia).
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 retrospectively validates de facto property and maintenance orders; the status of which was called into question by the failure to make a proclamation under section 40(2) of the Family Law Act at the time the courts were sought to be vested with jurisdiction in de facto financial causes.
A proclamation has now been made setting 11 February 2012 as the date on and after which the Family Court can exercise this jurisdiction. By virtue of section 40A of the Act, the Federal Magistrates Court also exercises this jurisdiction as of 11 February 2012.
A similar issue arose with respect to appeals from decisions or decrees of Family Law Magistrates in Western Australia under paragraph 93A(1)(aa) of the Family Law Act.That proclamation should have been made in 2006. A proclamation has since been made to exercise this jurisdiction in Western Australia. Orders made on appeal from family law magistrates of Western Australia have now too been retrospectively validated.
In order to avoid this problem arising in the future, section 40(2) of the Family Law Act has been repealed and a regulation making power has been substituted for the proclamation requirement. Regulations have been made pursuant to section 40(1) (Family Law Amendment Regulation 2012 (No. 2)) preserving the Family Court’s existing jurisdiction.
The Family Court has for some time had a dedicated, transparent judicial complaints policy and process, the details of which are available on the Court’s website. Under the complaints procedure, parties can make complaints about judicial conduct. Each complaint is thoroughly investigated in the manner outlined in the policy.
The Commonwealth Government has been in discussion with the federal courts about the development of an enhanced judicial complaints model to assist Heads of Jurisdiction to handle complaints that are referred to them. The model seeks to retain the role of Head of Jurisdiction in handling complaints, while offering support in fulfilling that role.
The model is broadly based on the NSW Judicial Commission, with appropriate modifications taking into account Chapter III of the Constitution. It is largely non-statutory in nature. The model applies to complaints relating to federal judicial conduct or incapacity. It identifies the basis upon which complaints can be summarily dismissed and proposes that conduct committees be established by Heads of Jurisdiction where they consider that a complaint warrants further investigation or where they would be assisted by independent advice about a complaint.
The Chief Justice, on advice from the Family Court’s Law Reform Committee, has provided comment during the development of the model; particularly to ensure that the operation of the Family Court’s existing judicial complaints process will be preserved. Legislation to support elements of the complaints handling process is currently before Parliament, in the form of the Courts Legislation Amendment (Judicial Complaints) Bill, which was introduced in March 2012. The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 18 June 2012.
Discussions between the Chief Justice and the Attorney-General’s Department as to implementation of the model are ongoing.
On 14 June 2012 Richard Foster PSM was appointed President of the International Association for Courts Administration (IACA) in The Hague, The Netherlands. The role is for a period of two years.
IACA seeks to improve the administration of justice by advancing modern standards of performance and efficiency in courts administration. IACA aims to:
‘Screening’ is sometimes described as a form of triage whereby all clients, on the point of entry to an agency or unit of an agency are asked a series of standardised questions designed to identify the risk of and/or presence of a particular concern1. Identifying the risk of and/or presence of family violence and taking measures to ensure client safety whilst families are engaged in court processes is a critical concern for the Family Law Courts.
The need for family violence screening in family law proceedings was acknowledged in the Federal Government Family Law Violence Strategy2 and has been subsequently endorsed in several government reports and enquiries including The Family Courts Violence Review3. The need for family violence screening has also been recognised by leading academics and experts – most notably at The Wingspread Conference4.
Family violence screening within Child Dispute Services helps to identify the existence of family violence as an issue as early as possible. This enables family consultants to:
In June 2011 a working group was established to consider the most effective and efficient ways of implementing family violence screening processes.
Following an extensive review of literature and existing screening instruments5, as well as consultation with Dr Jennifer McIntosh, six family violence screening questions were developed for use in child dispute conferences, child dispute duty conferences and child inclusive conferences.
The questions were based on acknowledged risk factors relating to the safety of parents and children. These questions were trialled in all registries in October 2011 and evaluated through a written questionnaire and telephone conferences with participating family consultants.
The evaluation confirmed that formal screening helped considerably in the identification of family violence. For example, in response to a question about threats to physical safety, one or other party answered yes in 85.5 per cent of cases.
Based on trial feedback, two additional questions were included. The final set of eight questions target the following risk factors:
An implementation plan was developed with training sessions being held with senior family consultants from each registry. The senior family consultants then trained family consultants and monitored implementation in their respective registries. Training was based on the family violence screening guidelines that accompany the screening questions.
The guidelines and the screening process highlight the thematic links between the questions and the revised and expanded definition of family violence as set out in the 2011 amendments to the Family Law Act.
Implementation was completed in May 2012 and standardised screening questions now form part of the opening phase of all child dispute conferences, child dispute duty conferences and child inclusive conferences.
The development of the questions was informed by the legislative definition of family violence (s4AB FLA) and current literature, including:
Consultations with various experts in the field, drawing specifically from:
The following fees apply in the Family Law Courts from 1 July 2012. The fees are fixed by Federal Government regulations. Please note: GST does NOT apply to the Family Law Court fees.
| Family Court of Australia | ||
|---|---|---|
| Document or service | New Fees from 1 July 2012 | |
| Applications | Application for consent orders | $84 |
| Application for nullity | $816 | |
| Application for a declaration as to validity | $816 | |
| Initiating Application (Family Law) | $255 | |
| Response to Initiating Application (Family Law) | $255 | |
| Hearings | Daily hearing fee (for each hearing day, excluding the first hearing day) | $638 |
| Setting down for hearing fee (defended matters) | $638 | |
| Appeals | Notice of appeal from a court of summary jurisdiction | $638 |
| Notice of Appeal to the Full Court including appeal from the Federal Magistrates Court | $1004 | |
| Federal Magistrates Court of Australia | ||
| Document or service | New Fees from 1 July 2012 | |
| Applications | Application for divorce | $577 |
| Initiating Application (Family Law) | $255 | |
| Response | $255 | |
| Hearings | Setting down for hearing fee (defended matter) | $466 |
| Daily hearing fee (for each hearing day, excluding the first hearing day) | $466 | |
In some cases, reduced fees apply; for example, if you hold certain government concession cards or you can demonstrate financial hardship. The reduced fee remains at $60.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 commenced on 7 June 2012. This act amends the Family Law Act 1975 to provide better protection in family law cases where there is family violence and abuse.
The amendments:
These changes put the safety of children front and centre in family law matters, without compromising a child’s right to a meaningful relationship with both parents where this is safe.
The following forms and publications have been updated as a result of these changes:
These revised forms and publications are available on www.familylawcourts.gov.au
For more information on the family violence amendments visit the Attorney- General’s website http://ag.gov.au/familyviolenceact
The Family Court Financial Statement Kit and Financial Statement form have been amended to include the Federal Magistrates Court and therefore are now Family Law Courts forms.
The Financial Statement Kit has been amended to include the Federal Magistrates Court (122011 V1). Changes have been made to page C and Part A and Part M.
The Financial Statement form has been amended to include the Federal Magistrates Court (06122011 V1). Changes have been made to Part A and Part M.
The updated forms are available on www.familylawcourts.gov.au
The results of the 2011 Family Law User Satisfaction Survey were released in December 2011
The survey was hailed as a success and future surveys are planned.
Some of the survey’s key finding included:
The full report is available in the Publications section of the Family Law Courts website at www.familylawcourts.gov.au.
Over 6500 lawyers are now registered with the Portal and are eFiling about 100,000 documents each year. In April 2012 alone there were 45,000 successful logins.
The Portal can provide up to date information about a matter and eFiling is simple and quick. It takes a few minutes to upload a supplementary document and all that is required is for the user to be registered with the Portal, have a PDF scanned version of the document and an ADSL internet connection. As soon as the document is uploaded it is available for viewing, including the content, and it is easily retrievable whenever it is required from anywhere in the world.
There have been several noteworthy enhancements to the Portal.
The Family Law Courts are now providing training for law firms onsite at the firm’s office. Our trainers are able to do a live presentation by accessing a computer at a firm’s office anywhere in Australia through the use of remote control software. The training includes an overview of the Portal as well as how to eFile documents.
To access the Portal: www.comcourts.gov.au
For Portal support email: support@comcourts.gov.au
Training bookings or Portal support can be made through the National Enquiry Centre on 1300 352 000.
Justice Macmillan holds a Bachelor of Laws from Monash University and was admitted as a solicitor and barrister of the Supreme Court of Victoria in 1979. In 1980, Justice Macmillan worked as a research assistant at Monash University reviewing Medibank legislation and the amendments to that legislation and as a part-time solicitor with Springvale Legal Service. Her Honour joined Snyder and Fulford Solicitors in 1981 and spent four years with that firm working in areas of family law.
In 1985, Justice Macmillan signed the bar roll and commenced practice as a barrister of the Victorian Bar. In 2009, Justice Macmillan was appointed Senior Counsel. Her practice has focused on all aspects of family law including complex children’s matters and commercial property matters.
Justice Macmillan is a member of the Family Law Bar Association of the Victorian Bar, the Women Barristers Association, the Family Law Section of the Law Council of Australia and is on the organising committee of the combined Law Institute/Victorian Bar biannual residential conferences. She has been a member of the Victorian Federation of Legal Centres, Chair and member of the Legal Aid Appeal Committee, Victorian Legal Aid Commission and member of the organising committee of the first National Conference of Community Legal Centres.
Justice Macmillan was sworn in on 14 December 2011 and is assigned to the Melbourne registry.
Justice Rees holds a Bachelor of Laws from the University of Sydney and was admitted as a solicitor of the Supreme Court of New South Wales in 1978.
From 1976 to 1978, Justice Rees worked as an articled law clerk at John S Gibson in Penrith. After her admission, Justice Rees joined the general practice, Grossmans, as a solicitor, and then in 1979 formed the partnership of McDonald Rees.
In 1981, she joined Legal Aid as a legal officer, where she worked until 1987, attaining Senior Legal Officer standing. Justice Rees commenced private family law practice in 1987, becoming a partner of Laurence and Laurence Solicitors.
In 1993, Justice Rees was admitted as a Barrister of the Supreme Court of New South Wales. Her practice included first instance and appellate work in relation to both parenting and property matters. Justice Rees was appointed Senior Counsel in 2009.
Her Honour has been a teacher at the Australian Advocacy Institute since 2006. She is the New South Wales Bar representative on the Executive of the Family Law Section of the Law Council of Australia. In that role she is the Chair of the committee on the law relating to children and responsible for the oversight of the national training course for Independent Children’s Lawyers. Justice Rees is also a member of a joint working party of the Law Council of Australia and Family Law Council drafting the ‘Best Practice Guide for Lawyers doing Family Law Work’.
She is a former member and Chair of the Family Law Review Tribunal of the New South Wales Legal Aid Commission and member of the Family Law Committee of the Law Society of New South Wales.
From 2002 to 2005, Justice Rees was a member of the committee of the Family Law Council reporting to the Attorney-General on the representation of children.
Justice Rees was sworn in on 14 December and is assigned to the Sydney registry.
On 30 March 2012 a ceremonial sitting took place for Justice Rod Burr AM, marking his retirement from the Family Court of Australia.
Justice Burr was admitted to the Bench of the Family Court in April 1998, after a distinguished legal career serving as President of the Law Society of South Australia and Chairman of the Law Council of Australia’s Family Law Section.
During his time with the Court, Justice Burr has overseen some of the most difficult and stressful cases in his role as the national coordinating Magellan Judge and described this role as ‘…an emotionally draining task’.
‘On behalf of the Court, I sincerely wish Justice Burr all the very best in his early retirement. He has made a significant contribution to the Court. He will I am sure continue to make a contribution both domestically and internationally to children through the World Congress on Family Law and Children’s Rights Inc which he and Justice Fowler, also a Family Court judge, established.’ Chief Justice Diana Bryant AO.
After more than 11 years of service to the local community of Townsville and the wider area of Far North Queensland, The Honourable Justice Robert Monteith retired from the Family Court of Australia on 30 November 2011.
Justice Monteith was admitted as a Barrister and Solicitor of the Supreme Court of Victoria in 1967 having done his Articles with Corr & Corr Solicitors in Melbourne. He was a member of Victorian Bar from 1968 to 2000 and was made a Senior Counsel in 1999. In 1990 he was admitted to practice in Queensland and in 1993 His Honour moved to Townsville and commenced practice predominately in Townsville. On 28 November 2000, Justice Monteith was appointed to the Family Court of Australia.
The Court wishes Justice Monteith a very happy retirement.
The Court was saddened to hear of the passing of the Honourable Robert John Bulley on 4 March 2012.
His Honour commenced work with the Court in 1977 after receiving an Arts/Law degree from the University of Queensland. He excelled in his early school years, which saw him receive an open scholarship to the University of Queensland.
His Honour’s career with the Court spanned 18 years and saw him gain the respect and admiration of many colleagues. His time on the Bench was described as ‘one in which he displayed great knowledge of the law and also showed gentleness, compassion and an ability to put parties at ease’.
In addition to his role with the Court, His Honour also spent time sitting on the Children’s Services Tribunal, the Mental Health Tribunal and the Administrative Appeals Tribunal. He also worked as a consultant to HopgoodGanim lawyers.
Robert Bulley was passionate about sport, so passionate that he was caught listening to an AFL final game through an ear piece at his son’s wedding. He was also a keen cricket, tennis and rugby player, playing A grade rugby during his time at university.
We offer our sincere condolences to his family.
For more information about this publication, including ordering additional copies or to make changes to your mailing details (including removal from the mailing list), contact the Family Law Courts National Communication Office.
T 02 6243 8690
F 02 6243 8737