2019 FAMILY COURT HIGHLIGHTS – PARENTING

Each year the Federal Circuit Court and the Family Court of Australia express opinions and even change their minds on how key decisions are made about family law issues before the court. How the Judges interpret the Family Law Act with these new or changes positions is called “common law” and it can be just as powerful as the legislation.

 Our resident legal eagle Elroy has been attending courts all over the country (no airfares needed as he already has wings) to bring you this update on some of the major decisions relating to children this year. In our follow up he report on major decisions relating to property and spousal maintenance.
Over to you Elroy…

Hey Eaglets, here are the big things in Fed circuit and Family court that the Judges made decisions that broke new ground in 2019.
 Now listen I had to sit through hours of court boredom without one squawk to get these little gems so I hopes ya enjoy them!
Off we go…


JUNE 2019

Taking time to make the best decision!
Court grants adjournment of trial for 12 months to permit assessment of children’s time with father away from “artificial environment” of contact centre –
Judge Harman considered an application by the parents of children of 7 and 4 years (supported by the ICL) to adjourn a two day trial and make interim, instead of final parenting orders, despite the fact that the case had been before the Court for three years.
 As I say – finality is good but justice is better!

JULY 2019

When you ain’t daddy
Husband discovered that he was not child’s biological father after separation when child was 13 months of age – His “friendly relationship” (which child enjoyed) allowed to continue despite mother’s strong opposition – Order for husband to spend four hours with the child every six weeks.
Now that’s a dad with commitment!

Overseas travel
Suspension of interim injunction against overseas travel and of watch list order was erroneous as the parties’ subsequent final consent order had the effect of discharging all interim orders – Leave to travel overseas would require fresh proceedings as consent order was silent as to overseas travel

AUGUST 2019
Camera Recordings
Mother’s secretly taken video recordings of interaction with father at hand overs were admissible as mother had a lawful interest in her personal safety – Her secretly taken audio recordings of private conversations between father and the children held to be inadmissible

In Coulter & Coulter, Judge Heffernan heard the father’s application to exclude video recordings made secretly by the mother of his attendance at her home for hand overs and two audio recordings of conversations between him and the children, taken via a KIK messenger app on the children’s iPods. 
Threshold hearing on Rice & Asplund – Mother’s evidence of improvement in her mental health failed to justify reconsideration of a parenting order which had turned not on whether or not the mother had a mental illness, but on a finding that her fixed beliefs posed a risk of harm to the child.

When granny is crook

Interim order permitting relocation with children from Melbourne to Sydney to enable mother to be with terminally ill maternal grandmother.

SEPTEMBER 2019
Paying child support…from when?
Declaration of paternity under s 106A of the Child Support (Assessment) Act granted to mother four years after refusal of her application for child support assessment – Judged erred by leaving commencement of liability to the child support registrar – Act provides that such a declaration operates retrospectively to when the assessment application was made
In Calafiore & Netia the Full Court (Judges Kent, Tree & Hogan) considered a case where the parties’ only child was born after separation. The mother had lodged an application for child support assessment in May 2013 but the father was not named on the birth certificate. He disputed paternity so the child support registrar refused the mother’s application.

Watch lists
Judge erred by restraining international travel and placing children’s names on airport watch list without considering relevant matters as set out by the Full Court in Line & Line [1996].

OCTOBER 2019
Relocation without consent?

Unilateral relocation of mother to a town 2 and a half hours’ drive away – Review of registrar’s refusal to exempt father’s filing of a family dispute resolution certificate on the ground of urgency – No evidence of a genuine attempt to resolve dispute – Discussion of when a unilateral relocation is “urgent” for the purpose of s 60I(9).

NOVEMBER 2019
Daddy didn’t get a 60i certificate – oops!
Father applied for parenting order without complying with s 60I (family dispute resolution) – No exception applicable under subsection (9) – On appeal by mother the FCC’s orders including order for parties to attend conference with family consultant pursuant to s 11F were set aside – Father’s application dismissed

In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the mother’s appeal from orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). In her response, the mother applied for dismissal of application as s 60I had not been complied with, arguing that the Court lacked jurisdiction.`

Fighting limited supervised time
Father diagnosed with delusional disorder by court-appointed single expert – Leave granted for father to adduce evidence from adversarial expert – Father’s wish to adduce other expert evidence to counter evidence that would otherwise lead to his having limited supervised time or no time with the children amounted to a “special reason” for leave pursuant to FLR 15.49(2)(c)

DECEMBER 2019
A history of parental conflict
Father’s contravention application was met by mother’s application for variation of parenting order – Adjournment of contravention application for 16 weeks – “Widely held view” that contravention applications must be heard before any other proceedings has not applied since introduction of Division 13A of Part VII –
Best interests of children paramount – and don’t we know it!

In Maddax & Danner [2019] Judge Murphy J (sitting in the appellate jurisdiction of the Family Court of Australia) heard the father’s appeal against Judge Turner’s adjournment of his contravention application where a family report was ordered in respect of the parties’ child now aged nine, the mother having cross-applied for variation of a parenting order made in 2016.

So that’s a wrap for parenting eaglets.
I’ll be feathering my nest and serving up the highlights of the property fights next week but till then this eagle has landed!

If divorce were only about you and your ex, you could go your silent, separate ways. No more having to compromise, negotiate, or listen to stories that have bored you for years. No more arguing, fuming, or fighting to be heard. No more “talking about it” when you just want to go ahead and do things your own way. But if you have children, co-parenting without talking won’t be so convenient.

Compared to custody and parenting arrangements from only a few decades ago, co-parenting is like a ‘180.’ No single parent is in charge, and focus is on the highest good of the children.

f divorce were only about you and your ex, you could go your silent, separate ways. No more having to compromise, negotiate, or listen to stories that have bored you for years. No more arguing, fuming, or fighting to be heard. No more “talking about it” when you just want to go ahead and do things your own way. But if you have children, co-parenting without talking won’t be so convenient.

Compared to custody and parenting arrangements from only a few decades ago, co-parenting is like a ‘180.’ No single parent is in charge, and focus is on the highest good of the children.

The key component to co-parenting is healthy communication. And, considering you may have divorced because of unhealthy communication, it may sound crazy to expect the two of you rise to the occasion now.

There can be a number of reasons that parents stop talking after a divorce. Jobs, personal schedules, new partners, shame, jealousy, incompatible communication styles, and even outright dislike for one another can cut the communication lines.

There are additional parenting options for co-parenting. Without talking to one another, you and your ex will have extra challenges if you choose to go the co-parenting route. And no matter which model you choose, you will both have to rise to the task of putting your children first.

Why is co-parenting without talking such an oxymoron? Because co-parenting is built around the assumption of healthy communication. In fact, the twelve characteristics of healthy co-parenting all tie back to this essential.


Here are a few key components to healthy co-parenting.

Open dialogue between parents 
Schedule and rule changes don’t go through the kids. They are handled between the parents first. (Sounds like being married, doesn’t it?)

No bad-mouthing of the other parent
That goes for the kids as well as for you. Your kids are still evolving into their identities, and both of their parents contribute to that lasting sense of self. Remind them of what’s good in the other parent, and save your personal issues for your support group.

Consistency with rules in both households
This is one of the most distinguishing characteristics of co-parenting compared to parallel parenting.

You are trying to make your kids’ lives consistent, dependable, and at least somewhat predictable. Your goal isn’t to trump your ex’s rules on homework, but to give your kids a sense of a unified homefront, despite two households.

Amicable interactions at school and in public
Don’t embarrass your kids. Don’t make them dread having both parents present at their sporting events and birthday parties. Be the adult you are trying to raise your kids to be.

So, if raising kids demands so much communication from parents who have no interest in speaking with one another, is co-parenting without talking possible? And if it is, what can you expect in the way of pros and cons?

The key to healthy co-parenting may be communication. But communication can be packaged in a variety of ways.

If you and your ex are truly committed to co-parenting vs. sole guardianship or parallel parenting, then you have to rise to the occasion. You may not feel warm and fuzzy about chatting on the phone or making nice in person. But you do have to choose how you will communicate – text, email, online schedulers – and commit to doing so in a healthy way.

What are some pros to co-parenting without talking?

You can focus only on your kids
As long as you are committed to the happiness and welfare of your kids, you can make co-parenting work with some detachment.

If you are still stewing over marital hurts, you may not be ready to enter into conversation with your ex. But make sure your interactions are respectful, non-sarcastic, and completely focused on what’s best for the kids.

You don’t risk provoking or being provoked
It can take years to process a divorce, even with the greatest intention to do so. And during that time, the mere sound of an ex’s voice – his/her, word choice, innuendos – can be a tigger, It doesn’t take much to “go back there” when talking with an ex you still resent or don’t fully trust, let alone like.

If you choose co-parenting without talking, you can keep matters businesslike and child-focused. No emotion. No squabbling. No escalations.

• You have greater distance and emotional detachment from your ex. 

Talking connects people. If it didn’t, it wouldn’t be so integral to creating intimacy.

Even negative talking is a connector in that it attaches you to the energy of what is said and how it is said. Verbal abuse wouldn’t be so damaging if that weren’t the case.

By not having to talk with your ex by phone or in person, you can detach from that verbal energy. And hopefully, with time and self-examination, you can both heal from the negative emotions connected to your relationship.

• You have a plan to live by…in writing.

If you aren’t going to talk, you’re going to have to write. And that means documentation. Texts, emails, written notes, online schedulers, shared correspondence with teachers and doctors – you have information in black-and-white. 

“I will be picking Lucy up from school at 2:00 to go to Dr. Caldwell’s.” “Today’s soccer practice has been cancelled due to rain.” “I will be overseas on business Tuesday. Will you send notes from the parent-teacher meeting?”
It’s all about the kids.

Obviously there are also cons to co-parenting without talking. After all, the ideal arrangement involves open communication between both parents.

Even with the above positives, there are going to be some negatives

• You risk not presenting a unified front

The benefit of a text is that it tends to be to-the-point and lacking in emotion (excluding multiple exclamation points and orange-faced emojis).

The drawback of a text is that it tends to be to-the-point and lacking in emotion. It also lacks details that are more easily expressed in verbal communication.

A key element of co-parenting is consistency between households. And that means that, even without being married, parents have to present a unified front.

This is especially important as kids enter their teens and become more independent. They will inevitably test and push boundaries. And both parents will have to stand together as one in establishing rules and doling out discipline. Again, focus on the kids.

• You risk using your kids as a channel for communication 

You are still responsible for communicating with your ex first on all matters regarding rules and schedules for your kids.

Talking takes less time than sending emails or logging into an online account. And it can be tempting to tell your kid, “Tell your dad we need to rearrange our weeks because of the upcoming trip to Grandma’s.

This becomes a slippery slope into using your children as a go-between in your relationship with your ex.

• It’s more difficult to maintain consistency between homes

If you were still married, you would most likely verbalize the little things that make a big difference. Now that you need to uphold rules and make consistent changes across two households, not talking can pose a big challenge.

• It’s more difficult to resolve issues involving your kids’ behavior 

Your pre-pubescent 12-year-old isn’t a toddler anymore. And, while his behavior as a pre-teen may make you wonder, he needs different parenting now than he did then. And that includes (especially) direction and discipline regarding behavior and choices.

If you were still married, do you think you would be able to accomplish this effectively by leaving Post-It notes for your spouse? Co-parenting without talking doesn’t make it any easier.

• Your kids don’t get to watch their parents model healthy conflict resolution and civil behavior

Ideally, co-parented children get to observe their divorced parents resolving differences in a healthy, effective way. They get to experience a sense of family in public without being embarrassed, ashamed, or afraid.

They grow up knowing that their parents love, support, and prioritize them. And they learn how to become healthy, communicative adults themselves in the process of growing up.

When you are co-parenting without talking, your children lose this experiential learning. They see little to no communication between their parents, and therefore have to learn those essential relationship and parenting skills elsewhere.

Parenting is the most demanding, important job in the world. And those demands and importance don’t dwindle after a divorce.

While co-parenting may be the ideal arrangement for children, the parents have to be prepared and committed to what is required of it. Co-parenting without talking, while not ideal, is definitely possible. But it does require mutual commitment, diligence, and respect.

We extend our thanks to Dr. Karen Finn for this article

NEED HELP?
Don’t forget if your self representing and needing low cost help with your family law matter or even just trying to work out a fair dinkum parenting plan with the ex – drop our fabulous paralegal Abbey a line at –  abbey@TheLegalEagle.com.au
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Make an appointment to have a chat with Australia’s friendliest family lawyer Mark Bradbury HERE

These days the main complaint mums and dads have about family court proceedings involving their children is the way the Independent Children’s Lawyer (ICL) is involved, and the perceived biased opinions they have about important issues like how co-parenting is to be managed.

And when it comes to your kids, ICLs carry a lot of sway in the courts, so it’s important to check and see whether yours is behaving appropriately and abiding by the guidelines that were set up back in 2013 and endorsed by the Chief Justice of the Family Court and Federal Circuit Court of Australia.

Before I begin, I’d like to share a little story about an ICL I use to know whose name shall remain sealed behind these lips.
Firstly, ICLs in many cases are often just normal lawyers often working in suburban firms with enough ‘kilometres on the clock’ to be considered “worthy” of being appointed by the court to act in that role.
Sometimes, ICLs work for legal aid and that work is just part of the mix of what they do.

But let’s go back to my ICL from the local law firm, and by god there are an awful lot of them with only this background.
Firstly, you have to remember that being an ICL isn’t their day in day out work and indeed may constitute just a small percentage of their already overburdened week with a dozen other clients and cases. And with that, they are often time poor and very hard to get a hold of when an anxious parent needs something clarified, or a decision explained.

The ICL I knew was regularly subject to formal complaints from both lawyers appearing for parents, and from self representing mums and dads. This person would often talk off the record about how they had a personal dislike for one of the parties lawyers or one of the parties. They would describe anxious and frustrated parents in very unkind terms like “neurotic”, “demanding”, “dangerous”, “deadbeat”, “promiscuous” and “useless”. And when you think about it, this is the person that is suppose to prepare non biased reports to the court so important decisions can be made about parenting.

Additionally, his reporting was often exaggerated, and as such, not accurate. Reading these reports made me wonder whether he understood that he was appointed to represent the best interests of a child in family law proceedings. To be honest, at times this average suburban lawyer seemed to be getting off on the power trip that came from making recommendations about a child’s future relationship with both their mum and dad. Time and time again the inaccuracies and bias in his reports reflected that.
But at least he got to be “king” for a day hey?

The Role of the ICL

So what are these court appointed lawyers meant to do?
Section 68LA of the Family Law Act regretfully provides the usual murky waters and vagueness to guide us.

Let’s take a look.

68LA (2)  The independent children’s lawyer must:

                     (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

                     (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

On first reading it almost sounds like the ICL gets to decide what is in the best interests of the child but that wouldn’t be right because the law is also pretty damn clear on what the best interests of the child are all about. And the primary consideration here is the benefit to the child of having a meaningful relationship with BOTH of their parents.

Naturally, the law also clarifies that where violence and abuse are prevalent, that can be overridden.

The law then goes on to state that:

68LA (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

Again it all seems so subjective. How can a ICL, who usually has no professional skills beyond the law decide on parenting outcomes? And the one I know would say, “well there’s a report from the family consultant and they met mum, dad and the kid for an hour so that’s what I’ll make all my recommendations for the child’s immediate future on”.
Good lord is it any wonder parents are up in arms about these flimsy processes about deciding their child’s future?

The law also reminds us of something very important about the ICL and their role and duties:

 68LA(4)  The independent children’s lawyer:

                     (a)  is not the child’s legal representative; and

                     (b)  is not obliged to act on the child’s instructions in relation to the proceedings.

Yep that’s right they are NOT the child’s lawyer, and although they are suppose to meet with kids who have reached school age, they don’t have to apply any regard to what a child might want.

Specific duties of ICLs to be impartial often are not done…

 68LA(5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

                     (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

                     (c)  if a report or other document that relates to the child is to be used in the proceedings:

                              (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

                             (ii)  ensure that those matters are properly drawn to the court’s attention; and

                     (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

                     (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Well we all know that much of the above in the way it is worded, leaves open the opportunity for overworked or power hungry ICLs to  steer towards subjectivity and personal bias.
One thing I would note is that it’s a rare day indeed when an ICL actually “facilitates an agreed resolution of matters at issue in proceedings”.

So how should an ICL behave?

How can a court appointed lawyer on a limited budget and a low hourly rate put the time into this sort of complex work of getting two warring parties at court to put together consent minutes. That is a substantial task and I don’t think I have ever seen an ICL achieve it. When in doubt, a good ICL should refer to what the court has set out as a guideline for appropriate behaviour.

♦ Be truly independent of the court and the parties
♦ Act impartially
♦ In professional relationships be skilful, competent and an impartial best interests advocate
♦ Work with family consultants to ensure the best interests of the child (no subjectivity)
♦ Promote a timely resolution of proceedings consistent with best interests of the child
♦ Assist both parties to reach a resolution by negotiation… or judicial determination

The sad thing is that the system is broken and many good ICL’s don’t have the resources or funding to get negotiations on foot, so that agreed outcomes can be worked out.
For the bad ICLs, the work they do ends up being nothing more than a regular cash cow where time is only spent as per dollar allocated and often with bias and subjectivity.
These ones should frankly be shown the door.
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