Monday, April 16, 2012

Merger of Family Court and Federal Magistrates Court – Family Law Divisions in NSW

Much has been recently written about family violence and sexual abuse in connection with parenting matters in the Family Court and Federal Magistrates Court.  Obviously, sexual abuse is included in the more general term of ‘family violence’ so where this paper refers to family violence alone it will usually include consideration of sexual abuse.
The Family Court has helpfully published its ‘Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged’.  The first edition was published on 6 March 2009 and a draft of the second edition is currently being circulated by the Court for comment prior to approval and publication.  The Best Practice Principles are on the Court website and are very helpful.  In a real sense they entail something of a check list of factors that should be considered at the different stages of the Court process where parenting orders are in issue.
In the writer’s respectful opinion the draft second edition is even more helpful than the first although, unfortunately, it cannot be quoted in this paper as it is not in the public domain yet.  Do watch for it because it now also includes a significant amount of mental health learning to add to our understanding of the dynamics of handling these difficult matters.
The Family Law Legislation Amendment (Family Violence and Other Measures) Bill of 2011 has now entered the parliamentary process and been published with an explanatory memorandum.  It is currently (at time of writing) before a Senate Legal and Constitutional Committee for review and comment.  I do not expect it to be greatly altered when it passes the parliament.  Similarly, I expect the Bill to become law relatively quickly as the government will not want to be seen to be slow in acting in this difficult and topical area.
I now proceed to discuss how a lawyer should respond to allegations of family violence and sexual abuse in a parenting matter before them.
New Client
The first question is what happens when a new client comes to you and alleges violence by the other person.  They want you to advise them what time the other party should have with the children and what to do generally.
Family violence orders, otherwise known as Intervention Orders (Victoria) or Apprehended Violence Orders (NSW), with equivalents in other states, have previously been discussed at length by me in the Television Education Network paper presentation ‘Family Violence, Family Law, Myths & Practices’ and I shall not discuss that further here.  Suffice to say that your client may or may not obtain a family violence order and then the parenting order issues remain.
The first thing for you to do is to take careful instructions about the nature of the violence and to make at least a preliminary judgment about how serious it is.
The Courts’ Best Practice Principles state that you should consider whether the violence is ‘controlling family violence’ or what could be called ‘coercive controlling violence’.  The emphasis is on whether there is an ongoing pattern of threat or force or emotional abuse which is directed towards control and does not necessarily involve a history of physical harm.
This is contrasted with what could be called situational violence, such as self-defence, a mutual argument that erupts into violence or violence at the point of separation.  In the latter instances, there is a good probability that future incidences of violence will either be reduced or simply will not occur at all after separation and where the context for the original violence occurring no longer applies.
Sexual abuse or inappropriate sexual dealing with a child is another major area for concern beside the coercive controlling violence.
You must take careful details from the client of incidents of violence: dates, place, what was said, what led up to the violence, precise description of the violence: fist, slap with hand, kick, spitting etc?  Insist on the client telling you the words that were said.  If there were numerous swear words, you can’t be shy of those swear words and indeed when preparing an affidavit for Court they have to be quoted verbatim to give your case strength and credibility where appropriate.
You need to be saying to a client that if there is serious violence or even minor anxiety that sexual abuse may be an issue, the client’s own credibility in the Court process will be greatly harmed if they agree, in the short term, to unfettered time with the child by the alleged perpetrator.  It is obviously difficult to give that person time and subsequently run off to Court and allege that they are a terrible threat to the child or children.  This needs to be assessed by you early.
Having said that, you also need to consider the obligation in section 60CC(3)(c) of the Family Law Act (called the ‘friendly family provision’) that the law must consider ‘The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.’
Hence, you have to be careful about recommending, under the desire to protect a child, that a client simply allow no contact with the child.
I suggest:
  1. If the allegations are particularly serious by all means protect the child and offer no contact.  The client will have to ‘swear up’ to details of allegations when pushed in Court but if their position is credible then the friendly family provision in my view is not something to be feared.
  2. Even in serious cases, it is often better for the protective parent to offer contact conditional on it being supervised.  This presents the protective client in a positive light in terms of at least giving evidence of trying to foster an ongoing relationship with the other parent.
Note that the amending 2001 Bill actually repeals the friendly family provision and replaces it with two sub-paragraphs.  Sub-paragraph (ca) says the Court is to take into account ‘The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.’
Pre-Court Preparations – Section 60l
As we know, it is ordinarily compulsory to tell clients that they must go to mediation with a family dispute resolution practitioner in accordance with section 60I of the Family Law Act before being permitted to commence parenting proceedings.
However this does not apply if there are reasonable grounds to believe that:
(i)         there has been abuse of the child by one of the parties to the proceedings; or
(ii)        there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)       there has been family violence by one of the parties to the proceedings; or
(iv)       there is a risk of family violence by one of the parties to the proceedings,
If there is a family violence order or an application has been made and not finally heard for a family violence order then the section 60I compulsion will not be applicable.
Further, you should consider the definitions in section 4(1) of the Family Law Act.
“Abuse” means:
  1. an assault, including a sexual assault, of a child which is an offence; or
  2. involving a child in a sexual activity…as a sexual object.
“Family violence” means actual or threatened conduct toward a person, or their property or a member of their family that causes them to be fearful or reasonably apprehensive about his or her safety.
The 2011 Bill inserts a considerably expanded definition of family violence in new section 4AB which, just to pick out some of the additional items of interest, includes stalking, repeated derogatory taunts, intentionally damaging or destroying property or an animal, unreasonably withholding financial support, preventing a family member from keeping connections with his or her family, friends or culture etc.
Even if you can go to Court without a section 60I certificate, clients will often consider going to family dispute resolution first.  It may be that the offender will benefit from having their issues ventilated in front of a neutral person who can give feedback about how inappropriate their behaviour has been or about ways of avoiding the behaviour in the future.  The offender may be referred to post separation parenting courses or anger management courses or the like and so the dispute resolution process should not be dismissed out of hand as an option by the practitioner.
If you decide to go to Court without a certificate remember that you will have to specify the reasons in your affidavit filed with the Court as to why there is no certificate or you will not be permitted to issue your application.
You also need to decide which Court to issue in.  Note that the Family Law Courts’ website has a protocol for the division of work between the Family Court and the Federal Magistrates Court.  For our purposes here this stipulates that matters which would usually be issued in the Family Court are those where there are:
Serious allegations of sexual abuse of a child warranting transfer to the Magellan List or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior Court.
The protocol also stipulates that if a final hearing is likely to take in excess of four days the matter should be issued in the Family Court.
Going to Court
Where there is family violence or abuse alleged it is compulsory to file a ‘Notice of child abuse or family violence’ (Rule 2.04B of the Family Law Rules).
By filing the notice of abuse, section 60K of the Family Law Act is triggered which requires, in a nutshell, that urgent and careful consideration of the matter be given by the Court.  Please read the section.
In addition the notice of risk of abuse is served on the state or territory’s relevant child protection agency and that agency has the ability to intervene in the proceedings.
Magellan Process
If the matter is one of allegations of serious abuse or sexual abuse then it will go straight into the Magellan List in the Family Court or be transferred from the Federal Magistrates Court to the Family Court and then to the Magellan List.  The aim is to complete these cases within six months which in practice is often successful.  Usually a registry has one or more judges who hear all matters in this list.
The matter will be brought on for an expedited first hearing and urgent orders will be made.
Even with serious allegations, time with the other party will usually be ordered but on a carefully supervised basis.  If you are a respondent to an application you need to look carefully before you go to Court at potential supervisors.  If you have upstanding family members who will in your judgment present well then they should be on affidavit indicating that they will honour any directions of the Court.  They should also attend the Court because the  Court will often require undertakings from a potential supervisor, especially if even supervised time is hotly contested.
The Court will also usually order at the first return date:
  1. that the state or territory child protection agency provide a report on the matter with recommendations;
  2. that the child protection agency’s records be subpoenaed;
  3. that an Independent Children’s Lawyer be appointed; and
  4. that a family report be ordered.
The matter will be case managed by the same judge and the time between Court events will be relatively short so as to keep the process moving to conclusion.
If you are not referred to the Magellan List, your parenting case proceeds like any other parenting matter.
The Presumption of Equal Shared Parental Responsibility
As we know, section 61DA states that the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  Section 65DAA then stipulates that if the equal shared parental responsibility applies the Court must consider whether it would be in the interests of the child to spend equal time with each parent; if not, whether they should spend substantial and significant time with each parent; and failing the above, they must make the order they consider best serves the best interests of the child.
However in the matters which are the subject of this paper the equal shared parental responsibility presumption should not apply.  Section 61DA(2) provides that it does not apply if there are reasonable grounds to believe that a parent has engaged in:
(a)   abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)   family violence.
Of course it is incumbent on the lawyer to make sure that both the notice of abuse is filed to specify what family violence or abuse has occurred and also to make sure that the client’s supporting affidavit carefully describes the violence or abuse.
The Orders You Seek
It is important to carefully consider what orders you seek in your parenting order application, bearing in mind what the Court is likely to order.  The Best Practice Principles of the Court give some helpful guidance.
Obviously the first question is whether the alleged offender should have any time with the child (or children).  The Court must consider the likely risk of harm.  If there is an ‘unacceptable risk’ (a considerably lower test than a balance of probabilities test), then serious consideration has to be given to varying what might otherwise be normal parenting orders.
At the interim stage the Court would ordinarily consider (section C of the Best Practice Principles):
  1. whether time should be supervised;
  2. should the supervision be at a child contact centre (a good option where there is no family member or friend who is mutually trusted, but with the downside that there are often substantial delays in getting into contact centres);
  3. times for the contact (which are more likely to not be overnight);
  4. places of exchange (it is important often to protect one party from further abuse on such occasions);
  5. who should be permitted at the handover and even during the contact time;
  6. who will bear the costs of supervision if applicable; and
  7. what other interim protective arrangements should be put in place.
You need to consider all these matters carefully when drafting your proposed orders.
Note also that the 2011 Bill repeals section 117AB which mandated a costs order where knowingly false allegations (of violence or otherwise) are found to have been made.
Drafting Affidavits
This is arguably the most important part of the Court process for the lawyer.  Allegations of abuse must be detailed.  They must be dated as far as possible with times and contexts.  Who was present?  What was said?  As far as possible, conversations should be reported as ‘I said / she said / I said / she said’ etc.  It is understood the clients will not truly be able to give verbatim word for word, but the closer you can get to the original the more credible will the story be, and the stronger it will be at final hearing if cross-examination occurs.
Most importantly, clients forget over time.  If you start a Court case and get to a final hearing 9 or 12 months later, you will have done the client a great service by taking detailed instructions at the beginning which they can then use to refresh their memory of the history.  On many occasions I have reminded clients of facts which they told me about one or two years ago which I have faithfully recorded in their file.
The Court will want to get to the bottom of, firstly, what family violence has occurred and, secondly, what is the attitude of the offender.  What is the risk of family violence occurring again in the future?  Has the parent expressed regret and shown some understanding?  Can the parent have contact with the child which is of benefit to the child but without putting the child at risk?
Particularly consider the application of section 60CC(2) of the Family Law Act which states that the primary considerations for the Court are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from abuse, neglect or family violence.  Note that the 2011 Bill inserts a new sub-section 60CC(2A) stating that if there is any inconsistency between the two principles just quoted, greater weight must be given to the need to protect the child from abuse, neglect or family violence.
Do compile corroborative affidavit evidence for your client.  If another family member or friend has witnessed abuse put them on affidavit.  If a doctor has treated a child or your client for injuries, put the doctor on affidavit.  If the doctor refuses to swear an affidavit, subpoena their records.
If there is professional corroboration of at least some of the allegations, that is enormously helpful.
Conclusion
Cases involving allegations of family violence are difficult.  Unfortunately, we family lawyers hear them ‘all the time’ and sometimes it can be tempting to drop our guard.  We must take great care in assessing these matters.  We do not want to be involved in a case which ultimately results in a child murder because of inadequate protection to a child.  We also need to help our own clients sometimes understand the seriousness of their situation.  Sadly, some clients simply get used to living in an abusive environment and perhaps do not fully appreciate the harm which that can entail to their child.
This is the most important work a family lawyer can be doing.
(*From Stephen Winspear, Principal MOORES LEGALAccredited Family Law Specialist)

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