What’s New in the Family Law Jurisdiction
Presented by Bruce Thiele, Barrister, Brisbane Chambers For Legalwise 7 March 2019
FAMILY LAW LEGISLATION REVIEW: ANALYSIS OF THE ALRC INTERIM REPORT 1 SHORT HISTORY 1 THE DISCUSSION PAPER 5 Simplifying the FLA – Parenting 5 Simplifying the FLA – Property 7 FDR In Property Matters 9 A Triage for the Courts 10 The Child’s Voice - Another Lawyer at the Table ? 10 FDR Practitioners and Property 12 CONCLUSION 13 THE PILOT PROGRAM FOR CASE MANAGEMENT IN THE FEDERAL CIRCUIT COURT IN BRISBANE 13 A NEED FOR PRACTITIONER IMPROVEMENT 14 THE BRISBANE CASE MANAGEMENT INITIATIVE 16 SOME RECOMMENDATIONS FOR FIRST APPEARANCES 16 CONTEMPORARY ADR PRACTICES IN FAMILY LAW ARBITRATION AND MEDIATION 17 BRIEF HISTORY 17 ADR – A CONTEMPORARY PRACTICE MEETING A GENERATION OF ISSUES 18 PDR IN 2019 19 CONTEMPORARY MEDIATION PRACTICES 19 Chunk or Interim Mediation 19 Multi-party Mediations 20 Arb-Med 20 Judicial Mediations 20 Mediation Is The Ends – Not a Means to an Ends 21 THE RISE OF ARBITRATION IN FAMILY LAW FINANCIAL DISPUTES 22 What is Arbitration? 22 Who Is An Arbitrator 23 Types or Forms of Arbitration 23 What Are The Events Leading Up to Arbitration 23 What Happens at an Arbitration 24 Who Can Be Present and Confidentiality 25 Voluntary Process: Arbitration Agreement Cannot Be Departed From Without Agreement 25 How Long Will It Take 25 What Happens Afterwards 25 Legal Status of the Award 26 Do I Need a Lawyer 26 Tips for Lawyers 26 LITIGATION IN THE CHILD PROTECTION ARENA 27 GENERAL OUTLINE OF THE CHILD PROTECTION LAW IN QUEENSLAND 27 UNACCEPTABLE RISK OF SIGNIFICANT HARM 29 THE ORDERS A COURT CAN MAKE 30
Family Law Legislation Review: Analysis of the ALRC interim report
Short History
1. The Family Law Bill, introduced into Parliament in in 1974 by then A-G Lionel Murphy QC reformed the then existing Matrimonial Causes Act 1959-66 in the following ways;
a. Eliminated the concept of matrimonial fault; 2 b. Replaced the 14 grounds of divorce with the one ground of “irretrievable breakdown”; c. Removed existing bars to relief; d. Removed decrees of judicial separation, restitution of conjugal rights, jactation of marriage or annulment of a voidable marriage; e. Provisions concerning void marriages removed to a separate act; f. Removed the prohibition against divorce proceedings within three years of marriage g. Dealt with areas of family law such as maintenance, custody and property disputes “in a non-divorce situation; h. Strengthened conciliation provisions; i. Provided greater use of welfare officers; j. Required proceedings to be instituted by way of application; k. Provided simplified procedures, less formal hearings and reduced costs.
2. The Family Law Act 1975 No.53 of 975 contained 123 sections. The simplicity of the FLA in 1975 is perhaps exemplified by section 64 dealing with powers of court in custodial proceedings.
64. (1) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage-
(a) the court shall regard the welfare of the child as the paramount consideration;
(b) where the child has attained the age of 14 years, the court shall not make an order under this Part contrary to the wishes of the child unless the court is satisfied that, by reason of special circumstances, it is necessary to do so; and
(c) subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper, including an order until further order.
3. Fast forward to 2017. Whilst the primary source of jurisdiction and power for courts determining family law disputes arises under the FLA, a number of other Acts, both Commonwealth and State, also confer jurisdiction and power. Some of those Acts are; a. Federal Circuit Court Act 1999; b. Child Support (Assessment) Act 1988 & Child Support (Registration and Collection) Act 1988 c. Bankruptcy Act 1966 d. Marriage Act 1961 e. Income Tax Assessment Act 1977 f. Australian Passports Act 2005 g. Family Court Act 1975 (WA) h. Adoption legislation of each state i. Child protection legislation of each state j. Domestic violence legislation of each state k. State revenue legislation of each state
4. Additional jurisdiction may be conferred upon a court exercising family law jurisdiction through the accrued, associated, inherent or cross-vesting jurisdiction.
5. The FLA itself has been amended on a plethora of occasions. The FLA now embraces disputes between parties of same sex couples, non-married couples, third party creditors, lawyers negligently drafting binding financial agreements as well having the jurisdiction for the supervision of certain medical procedures upon children. 3
6. The often-quoted remarks of Warnick J in Zabini & Zabini [2010] FamCA 10 concerning the legislative pathway to be adopted when making a parenting order as “a dilemma of labyrinthine complexity” could well describe navigating the family law system entirely.
7. Since 1975 there have been a multitude of reviews, studies and commentary upon the family law system. In 2017, then Attorney-General Sen. George Brandis QC announced the “First Comprehensive Review of the Family Law Act” on 27 September 2017. The Terms of Reference are reproduced below:
having regard to: • the fact that, despite profound social changes and changes to the needs of families in Australia over the past 40 years, there has not been a comprehensive review of the Family Law Act 1975 (Cth) (the Act) since its commencement in 1976; • the greater diversity of family structures in contemporary Australia; • the importance of ensuring the Act meets the contemporary needs of families and individuals who need to have resort to the family law system; • the importance of affording dignity and privacy to separating families; • the importance of public understanding and confidence in the family law system; • the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner; • the paramount importance of protecting the needs of the children of separating families; • the pressures (including, in particular, financial pressures) on courts exercising family law jurisdiction; • the jurisdictional intersection of the federal family law system and the state and territory child protection systems, and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation be dealt with in the same proceedings; • the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes; • the benefits of the engagement of appropriately skilled professionals in the family law system
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to ss 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms to the family law system are necessary or desirable, in particular in relation to the following matters: • the appropriate, early and cost-effective resolution of all family law disputes; • the protection of the best interests of children and their safety; • family law services, including (but not limited to) dispute resolution services; • family violence and child abuse, including protection for vulnerable witnesses; • the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes • collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems; • whether the adversarial court system offers the best way to support the safety of • families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes; • rules of procedure, and rules of evidence, that would best support high quality decision-making in family disputes • mechanisms for reviewing and appealing decisions • families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness; • the underlying substantive rules and general legal principles in relation to parenting and property; 4 • the skills, including but not limited to legal, required of professionals in the family law system; • restriction on publication of court proceedings; • improving the clarity and accessibility of the law; and • any other matters related to these Terms of Reference.
I further request that the ALRC consider what changes, if any, should be made to the family law system; in particular, by amendments to the Family Law Act and other related legislation.
Scope of the reference The ALRC should have regard to existing reports relevant to: • the family law system, including on surrogacy, family violence, access to justice, child protection and child support; and • interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114.
Consultation The ALRC should consult widely with family law, family relationship and social support services, health and other stakeholders with expertise and experience in the family law and family dispute resolution sector. The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review.
Timeframe for reporting The ALRC should provide its report to the Attorney-General by 31 March 2019.
8. Relevantly, The Hon. Christian Porter was sworn in as A-G on 20 December 2017. Sometime in late December 2017 or early 2018 PwC was commissioned to undertake a review into the efficiency of the operation of the federal courts. The PwC Final Report dated April 2018 detailed nine “opportunities” to increase efficiencies in the federal courts, with courts exercising family law jurisdiction attracting particular attention. On 30 May 2018 the A-G announced plans to undertake structural reforms to the federal courts. The PwC report was released publicly on 17 August 2018 through a media release. Legislation concerning the structure of the Family and Federal Circuit Courts is currently before Parliament and is beyond the ambit of this paper for discussion. 1
9. Meanwhile, on 14 March 2018 the ALRC released an “Issues Paper”2 calling for submissions upon 47 questions. Some of the questions focused upon perhaps “motherhood statements” (e.g. Question 1) whilst other questions focused upon reform of the FLA (e.g. Question 18).
10. Where the PwC report focused more upon the metrics or data that could be harvested from the information from “engagement with senior family law court stakeholders” and “desktop assessment of court data”, the ALRC was clearly not so limited and open to the consideration of the meta-narrative – what most family law practitioners would refer to as “anecdotal evidence” or “common experiences”.
11. The submissions received and considered by the ALRC would validate this to be the case when it released the “Discussion Paper”3 after considering 480 submissions “from across
1 I posted an article on my website, Dissecting the Merger Bill, and am also delivering a presentation for Legalwise on 13 March 2019 considering that Bill. 2 Review of the Family Law System, Issues Paper (IP 48) 3 Discussion Paper 86 (DP 86) 5 a broad spectrum of stakeholders”. The ALRC has made available online approximately half of the submissions it received both in relation to IP48 but also DP 86.4
The Discussion Paper
12. Released on 2 October 2018 (the day before the 18th National Family Law Conference), the Discussion Paper made 124 proposals for change to the family law system. It would be beyond the limits of discussion to consider each and every proposal. Instead, this paper focuses upon those proposals that might directly impact upon the day-to-day practice of family law irrespective of whether proceedings are initiated in a court.
13. When considering the below analysis of those proposals it is worth considering the objectives underpinning the ALRC’s “Action Plan for Change”5 particularly those concerning the redevelopment of the family law system. Impacting directly upon family law practitioners is paragraph 1.69
1.69 The ALRC’s proposed tertiary level 6 responses include an expanded range of flexible dispute resolution options for reaching agreement about both property and children, including LADR models that are responsive to the safety needs of families (Chapter 5). The ALRC also proposes the development of a team-based triage process to ensure matters that reach the courts are directed to appropriate alternative dispute resolution pathways and specialist lists within the courts as needed, including new specialist lists for small property claims and family violence cases (Chapter 6). The ALRC also proposes that family law registries be co-located in state and territory local courts, including in regional and rural areas (Chapter 6). These reforms would be supplemented by the appointment of children’s advocates to support the participation of children and young people in contested proceedings (Chapter 7), and by the creation of a post-order parenting support service to assist highly conflicted parents to implement court orders and reduce the likelihood of enforcement proceedings (Chapter 6).
1.70 Together, these changes would be supported by a range of other proposals, including: • stronger legislative safeguards to address misuse of process and protect sensitive records (Chapter 8); • a new role for Litigation Representatives to give effect to a supported decision making approach for litigants with disability (Chapter 9); • a workforce capability plan to support family law system professionals to obtain and maintain core competencies for working with families and children, and an accreditation scheme for private report writers in children’s matters (Chapter 10); • the development of a national information sharing framework to guide exchange of information between the family law, family violence and child protection systems (Chapter 11); • a cultural safety framework to guide implementation of the reforms in a community-informed and culturally safe way (Chapter 12); and • a new oversight body to monitor the operation of the family law system (Chapter 12).
Simplifying the FLA – Parenting
Proposal 3–3 The principle (currently set out in s 60CA of the Family Law Act 1975 (Cth)) that the child’s best interests must be the paramount consideration in making decisions about children should be retained but amended to refer to ‘safety and best interests’.
Proposal 3–4 The objects and principles underlying pt VII of the Family Law Act 1975 (Cth) set out in s 60B should be amended to assist the interpretation of the provisions governing parenting arrangements as follows: • arrangements for children should be designed to advance the child’s safety and best interests; • arrangements for children should not expose children or their carers to abuse or family violence or otherwise impair their safety;
4 Australian Law Reform Commission, Family Law System, Submissions. 5 DP 86, [1.52] 6 “Tertiary level” is a reference predominantly to the family law courts 6 • children should be supported to maintain relationships with parents and other people who are significant in their lives where maintaining a relationship does not expose them to abuse, family violence or harmful levels of ongoing conflict; • decisions about children should support their human rights as set out in the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities; and • decisions about the care of an Aboriginal or Torres Strait Islander child should support the child’s right to maintain and develop the child’s cultural identity, including the right to: (a) maintain a connection with family, community, culture and country; and (b) have the support, opportunity and encouragement necessary to participate in that culture, consistent with the child’s age and developmental level and the child’s views, and to develop a positive appreciation of that culture.
Proposal3–5 The guidance in the Family Law Act 1975 (Cth) for determining the arrangements that best promote the child’s safety and best interests (currently set out mainly in s 60CC), should be simplified to provide that the following matters must be considered: • any relevant views expressed by the child; • whether particular arrangements are safe for the child and the child’s carers, including safety from family violence or abuse; • the developmental, psychological and emotional needs of the child; • the capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child; • the benefit to a child of being able to maintain relationships that are significant to them, including relationships with their parents, where it is safe to do so; and • anything else that is relevant to the particular circumstances of the child.
Proposal 3–6 The Family Law Act 1975 (Cth) should provide that, in determining what arrangements best promote the safety and best interests of an Aboriginal or Torres Strait Islander child, the maintenance of the child’s connection to their family, community, culture and country must be considered.
Proposal 3–7 The decision making framework for parenting arrangements in pt VII of the Family Law Act 1975 (Cth) should be further clarified by: • replacing the term ‘parental responsibility’ with a more easily understood term, such as ‘decision making responsibility’; and • making it clear that in determining what arrangements best promote the child’s safety and best interests, decision makers must consider what arrangements would be best for each child in their particular circumstances.
Question3–1 How should confusion about what matters require consultation between parents be resolved?
14. The ALRC proposed simplification of the FLA as a whole7 and improvement to family law court forms8 however the processes for courts making parenting orders received significant attention.
15. As discussed above, the process for making parenting orders has been described as a “a dilemma of labyrinthine complexity”. Many Full Court decisions refer to the requirement to “follow the legislative pathway”9 but a path is a linear object with a beginning and an end and Part VII of the FLA is anything but a lineal piece of legislation.
7 Proposal 3-1 8 Proposal 3-2 9 Goode & Goode [2006] FamCA 1346 ,p81 7 16. Whilst recommending the retention of the paramountcy principle of best interests, the inclusion of ALRC recommended including “safety” as part of that paramountcy principle appears to state the obvioous. As family law practitioners’ know, issues of safety (referred to as “harm” in s60CC(2)(b)) are already matters a court is required to consider when determining a child’s best interests. However, the ALRC made the recommendation “particularly outside of the court context, the amendment would send a strong message to families who rely on the legislation about the centrality of safety to a child’s best interests, and its fundamental importance as a consideration in all matters relating to parenting arrangements.”10
17. Pros ? – As a family law practitioner, anything that simplifies the existing Part VII would be welcome. A simplified Part VII assists with the advice to be given to a client, particularly in terms of what evidence needs to be collated and put before the judicial officer and what can be discarded. In my view, expert reports from social workers and child psychologists would fit more neatly into a simplified approach of “safety and best interests”. What remains unclear is whether the other provisions within Part VII that contribute to the labyrinth such as the application of the presumption and the consideration of equal time as a mandated step will also be simplified.
18. Cons ? – Once again, family law practitioners will need to re-learn how to apply Part VII, not merely with the reduction to considerations but changed terminology (eg Proposal 3- 7). There appears the potential for additional litigation, particularly upon appeal, about whether a judge has correctly considered the “safety and best interests” adequately. Whilst there is no one settled approach to Part VII determinations, a change to the paramountcy principle is, in my humble view, superfluous and necessary. It is also difficult to see how a change the paramountcy principle will drive home the message to the public. Most litigants I have cross-examined have not even opened the FLA, let alone considered section 60CC.
Simplifying the FLA – Property
Proposal 3–10 The provisions for property division in the Family Law Act 1975 (Cth) should be amended to more clearly articulate the process used by the courts for determining the division of property.
19. As for parenting decisions, a significant number of submissions complained about the difficulty in understanding how a court determines a just and equitable outcome. Unlike parenting matters however, most of the guidance is contained in several decades of jurisprudence rather than there being a legislative code. In the submissions to the ALRC there appeared a tension between developing a set of rebuttable presumptions about how assets and liabilities should be treated11 on the one hand and maintaining the existing discretionary system on the other.12 Other submissions considered distilling or codifying the existing jurisprudence into the FLA to better guide litigants.13
20. 33-
21. Pros? - It is difficult to argue against such a recommendation. Such an amendment may result in less disputes meaning less work for family law practitioners ! This would be particularly the case where a party is unrepresented (or under-represented) and may draw focus upon what will be relevant issues/evidence to negotiate and/or litigate upon.
10 DP 86 [3.42] 11 DP 86, [3.102] 12 DP 86, [3.103] 13 DP 86, [3.104] 8 22. Cons? – It is not immediately clear whether the “analytical steps” mean the classic “four step” approach in determining property settlements (probably now 5 since Stanford). The concern I would raise is whether the incorporation of such amendment would sit subordinate to the existing s79(2) and whether Stanford would continue to be good law.
Proposal 3–11 The provisions for property division in the Family Law Act 1975 (Cth) should be amended to provide that courts must: • in determining the contributions of the parties, take into account the effect of family violence on a party’s contributions; and • in determining the future needs of the parties, take into account the effect of any family violence on the future needs of a party.
23. From paragraph 3.110 the ALRC considered the issue of family violence in terms of property settlement. Practitioners are well familiar with the principle developed in Kennon14 that “where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79.”
24. Experienced family law practitioners know that firstly, Kennon arguments are difficult to prove as with most allegations of family violence, and secondly, are rarely run upon a final hearing. Indeed, there appears to be little consideration or development of the law in Kennon (which was probably obiter in any event).
25. Pros? – The specific inclusion of a Kennon type consideration will draw attention to the importance of such a consideration. My observations in the context of many mediations where a Kennon argument is raised, it is usually dismissed by the alleged perpetrator. The ALRC considerations at 3.118 to 3.120 appear to focus primarily upon addressing those perceptions and supporting the victim in seeking to redress that violence.
26. Cons? – Humbly, I am concerned about the likely intensification and increase to litigation that might flow from such an amendment. The potential for such arguments to be conducted as a quasi-compensation dispute appear to me to be real. It is not too cynical to expect a well-resourced litigant (such as the perpetrator) burdening a poorly resourced litigant (i.e. the victim) with requests for statement of claims and requests for further and better particulars. And whilst parenting proceedings can be conducted upon hearsay evidence (s69ZT), property proceedings are subject to the Evidence Act 1995 so do not expect to be able to rely upon annexed medical reports or subpoenaed QPS records as evidence of family violence. The importance of obtaining findings at a State domestic violence hearing may take on added significance as an unintended consequence of this amendment.
27. Cons? – It is not immediately obvious to me why contributions include a consideration of “the effect of family violence” whilst the s75(2) considerations include a consideration of “the effect of any family violence”. Is this to mean that s75(2) factors could include family violence perpetrated upon a party to the relationship by a third party or a subsequent partner ?
28. The development of ADR within family law will need to respond to these particular considerations if they are to be legislated into the FLA perhaps even suggesting findings or negotiations concerning family violence be determined as a discrete issue.
14 Kennon & Kennon [1997] FamCA 905 9 FDR In Property Matters
29. As a matter of full disclosure, I was significantly involved in the drafting of the Bar Association of Queensland’s submission to the ALRC, particularly paragraph 4.2 concerning resolution of family law disputes.15
Proposal 5–3 The Family Law Act 1975 (Cth) should be amended to require parties to attempt family dispute resolution prior to lodging a court application for property and financial matters. There should be a limited range of exceptions to this requirement, including: • urgency, including where orders in relation to the ownership or disposal of assets are required or a party needs access to financial resources for day to day needs; • the complexity of the asset pool, including circumstances involving third party interests (apart from superannuation trustees); • where there is an imbalance of power, including as a result of family violence; • where there are reasonable grounds to believe non-disclosure may be occurring; • where one party has attempted to delay or frustrate the resolution of the matter; and • where there are allegations of fraud.
Proposal 5–4 The Family Law Act 1975 (Cth) should be amended to specify that a court must not hear an application for orders in relation to property and financial matters unless the parties have lodged a genuine steps statement at the time of filing the application. The relevant provision should indicate that if a court finds that a party has not made a genuine effort to resolve a matter in good faith, they may take this into account in determining how the costs of litigation should be apportioned.
30. As a mediator, it frustrates me to observe court applications that were initiated for no other reason than to bring the other party to the negotiating table, usually weeks or months and several thousands of dollars after an initial letter was sent requesting an ADR process. Further, my observation now over more than 10 years as a mediator is that a failed mediation is due ordinarily to a lack of genuine preparation for the mediation including reality testing the client’s instructions and the solicitor’s advice.
31. Pros ? – The use of the s60I process toward property matters is likely to lead to less institution of proceedings in the family law courts. The flow-on effect of such an outcome seems fairly obvious.
32. Cons ? – Whether or not a party has undertaken “genuine steps” may be interpreted differently by different judges (or registrars). It is noted however that the Merger Bills referred to in the Short History above include an “overarching purpose of case management” being the facilitation of the just resolution of disputes according to law as “quickly, inexpensively and efficiently as possible” with parties and lawyers to cooperate with the FCFCA and among themselves” to assist in achieving the purpose(sect. 6).
33. “Overarching purpose” for Division 1 Courts is set out in sect. 48(1) whilst for Division 2 Courts is set out in sect. 157(1).
34. Sections 48 and 157 contain mirror provisions with familiar motherhood statements of requiring determinations to be according to law, quick, inexpensive, efficient and in a proportionate manner.
35. Importantly, sections 49 and 158 cast an obligation upon parties and by extension their lawyer to conduct proceedings “(including negotiations for settlement of the
15 Bar Association of Queensland, Submission 21 May 2018 10 dispute…) in a way that is consistent with the overarching purposes” with failure to comply with these obligations a relevant costs issue.
36. Despite there being pessimism about the likelihood of the Merger Bills passing this Parliament, the development of a common set of rules in the Family Court and Federal Circuit Courts appears to be proceeding regardless. 16 A genuine steps statement could well form part of those new rules in a way the pre-action procedures are currently part of the Family Law Rules.
A Triage for the Courts
Proposal 6–1 The family courts should establish a triage process to ensure that matters are directed to appropriate alternative dispute resolution processes and specialist pathways within the court as needed.
Proposal 6–2 The triage process should involve a team-based approach combining the expertise of the court’s registrars and family consultants to ensure initial and ongoing risk and needs assessment and case management of the matter, continuing, if required, until final decision.
Proposal 6–3 Specialist court pathways should include: • a simplified small property claims process; • a specialist family violence list; and • the Indigenous List.
37. This appears to propose, in part, a procedure that is currently being piloted in Brisbane with the Brisbane Case Management Initiative which is considered below in this paper. Proposal 6-2 also reflects the recent Senate Committee Recommendations into the Merger Bills (see Recommendation 3.112).17
38. Cons ? – If such a proposals are legislated greater focus will be required in the drafting of initial material to assist the court employ the right triage services at the outset. By virtue of PD 2 of 2017, this would be something Brisbane based family law practitioners are well familiar.
39. Pros ? – Empowering Registrars to deal with issuing orders such as standard directions and most interim consent orders would appear self-evident. If this is also extended to matters such as ordering s11F reports at the earliest opportunity (i.e. upon filing) then certainly the reduction to time and cost to litigants will transpire.
The Child’s Voice - Another Lawyer at the Table ?
Proposal 7–3 The Family Law Act 1975 (Cth) should provide that, in proceedings concerning a child, an affected child must be given an opportunity (so far as practicable) to express their views. (My emphasis)
Proposal 7–4 The Family Law Act 1975 (Cth) should provide that, in any family dispute resolution process concerning arrangements for a child, the affected child must be given an opportunity (so far as practicable) to express any views about those arrangements.
16 Source – FLS Executive Update (Qld) 15 February 2019 17 Senate Standing Committee on Legal and Constitutional Affairs, Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, Report 14 February 2019
11
Proposal 7–6 There should be an initial and ongoing assessment of risk to the child of participating in family law proceedings or family dispute resolution, and processes put in place to manage any identified risk.
Proposal 7–7 Children should not be required to express any views in family law proceedings or family dispute resolution.
Proposal 7–8 Children involved in family law proceedings should be supported by a ‘children’s advocate’: a social science professional with training and expertise in child development and working with children. The role of the children’s advocate should be to: • explain to the child their options for making their views heard; • support the child to understand their options and express their views; • ensure that the child’s views are communicated to the decision maker; and • keep the child informed of the progress of a matter, and to explain any outcomes and decisions made in a developmentally appropriate way.
Proposal 7–9 Where a child is not able to be supported to express a view, the children’s advocate should: • support the child’s participation to the greatest extent possible; and • advocate for the child’s interests based on an assessment of what would best promote the child’s safety and developmental needs.
Proposal 7–10 The Family Law Act 1975 (Cth) should make provision for the appointment of a legal representative for children involved in family law proceedings (a ‘separate legal representative’) in appropriate circumstances, whose role is to: • gather evidence that is relevant to an assessment of a child’s safety and best interests; and • assist in managing litigation, including acting as an ‘honest broker’ in litigation.
40. These proposals were informed by research conducted into children’s views about participation and in my view represent the most significant proposed change;
7.21 Children want to have a say in decisions that are made about their care arrangements. Research on children’s experiences of family law processes has also suggested that they are unhappy with the level and type of involvement they have had in these processes, and would like to have a greater opportunity to participate. A 2018 research study by the Australian Institute of Family Studies (the AIFS Children and Young People Study) into the experiences of children and young people in separated families has summarised the findings of a ‘substantial body of family law research in both the Australian and international context’ as establishing the importance of
children and young people having an opportunity for their views to be heard and considered in decision-making affecting them. In particular, research has highlighted the importance of facilitating these opportunities to be heard, both in relation to matters relevant to deciding the post-separation care and regarding the more general effects of their parents’ separation.
7.22 However, this desire to participate is often not realised. The AIFS Children and Young People Study found that, for a substantial proportion of children and young people,
the approaches adopted by the service professionals with whom they interacted operated in a way that limited their practical impact or effectively marginalised the child or young person’s involvement in decision-making about parenting arrangements.
7.23 Children and young people also reported having no or limited say in their care arrangements:
Participating children and young people commonly reported that they were either not consulted by the relevant family law system professionals in their case or, even where there were options to participate, that they were not heard by those professionals.
7.24 The Australian Human Rights Commission echoed this, noting that 12 the National Children’s Commissioner has received numerous representations from children and young people, and their advocates, about failures by courts and agencies within the family law system to solicit their views in the context of decision-making, and to provide them with accessible information about processes and outcomes.
(citations removed)
41. Immediately, it should be noted that the ALRC has attempted to balance between the risks of a child being involved in or exposed to the dispute between their parents and the right to be heard (see 7.46 to 7.53).
42. Currently, parties and judicial officers inform themselves as to a child’s views or wishes primarily through reports from a family consultant or through an independent children’s lawyer (an ICL).
43. Practitioners are well aware that the role of an ICL is to facilitate a child’s participation in proceedings (although practices vary significantly to what extent and if at all), to gather evidence including reports, and to act as an honest broker in litigation whilst managing the litigation to protect the child from harm.
44. However, as noted by the ALRC, the role of an ICL is not as a representative of the child nor is obliged to act on the child’s instructions. Section 68LA of the FLA explicitly requires an ICL to form an independent view of what is in the best interests of the child and act in what the ICL believes to be the best interests of the child.
45. In this regard, the ALRC noted that predominantly ICL’s take a cautious approach when engaging with and taking instructions from children (see 7.61 to 7.67)
46. On the face of Proposals 7-8 and 7-10 there appears to be a shift in the role of facilitating the child’s participation to that of the children’s advocate whilst retaining the remaining roles of an ICL within the concept of the separate legal representative.
47. Pros? – The Proposals would most certainly enable the child to participate in proceedings.
48. Cons ? – It is noted that the ALRC used the term legal proceedings in Proposal 7-3 “expressed broadly to encompass a wide range of proceedings under the Family Law Act. The ALRC invites stakeholder comment about which type of proceedings should be covered by the proposal.” This recommendation appears then to reach further than merely parenting matters and suggests that in any proceeding “affecting the child” the child should have the right to be heard. In that regard interim property proceedings could certainly be a matter that concerns a child and see the involvement of a child’s advocate.
49. Cons ? – Is section 100B of the FLA to be amended ? Will a child be subject to cross- examination ? What safeguards can really be put into place to prevent the unintentional or intentional manipulation or pressure of one party upon a child ?
50. Cons ? - Assuming there is a funding model for these proposals, the impact upon day-to- day practice would be significant particularly as the child’s advocate is in addition to the Independent Children’s Lawyer. Child-inclusive mediation is resource intensive, a fact noted by the ALRC at para 7.44.
FDR Practitioners and Property
Proposal 10–5 In developing the workforce capability plan, the capacity for family dispute resolution practitioners to conduct family dispute resolution in property and financial matters should be considered. This should include consideration of existing training and accreditation requirements. 13
51. Such a proposal obviously works hand in glove with what has already been the focus of this paper from paragraph 29 above and indeed this proposal came about as a result of Proposal 5-3 (see 10.29 & 10.30). Whatever the core competencies are of an FDRP is a little unclear (see 10.33).
52. Pros ? – FDRP with a more holistic understanding of both parenting and property matters might be able to respond and assist separating parents particularly where issues of emergency financial support are informing decisions about where (or where not) a parent might live.
53. Cons ? – The FLA in terms of property settlement is complex and nuanced. It transgresses many other areas such as tax, corporate and insolvency law (to name a few). It is likely that it would take significant training for non property-based FDRPs (such as FRC or LAQ based services) to obtain relevant core competencies.
Conclusion
54. The ALRC is due to report 31 March 2019. The current Federal Government has brought forward the annual Budget to the April sittings of Parliament. It is unlikely then any immediate changes to the FLA will occur other than those changes that might be the subject of the harmonising of the Family Court and Federal Circuit Court under the stewardship of Chief Justice Alstergren. As the first dual Chief Justice and Chief Judge, Alstergren CJ is certainly in a unique position to spearhead such changes.
55. The above is certainly not an exhaustive examination of the Discussion Paper nor is it suggested that the above examined proposals are the only proposals that will impact upon the day-to-day practice of a family law practitioner. However, it appears clear that the overarching emphasis of the review is upon the simplification of the law, less formality in the courts and the reduction of costs. Now where have we heard that before?
The pilot program for case management in the Federal Circuit Court in Brisbane
1. There would be little argument that the Federal Circuit Court (FCC) is straining under the pressure of demand vs. supply. In 2006 amendments to the FLA introduced a significant change to the manner in which parenting decisions were determined together with the implementation of the sect. 60I regime. From 1 July 2007, applicants wishing to apply for a parenting order under the FLA were required to provide a section 60I certificate from a FDRP, unless they fell within one of the legislative exceptions. The graph below is drawn from the Federal Magistrates Court / Federal Circuit Court Annual Reports from the period 2006 to 2017.
14 Family Law Applications - FCC 25000
20000
15000
10000
5000
0 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Interim applications Final applications 18
2. The worrying trend from the above graph is in relation to the greater increase of interim applications over final applications. It is easy to hypothesise that the delay in the final determination of disputes creates a greater necessity for interim applications due to some changing dynamic within a party’s circumstances.
3. The ambit of considerations that a family law practitioner, and ultimately a judicial officer, needs to consider has widened considerably in the last 15 years….but the matters which are permitted to be considered on a first return date have also narrowed. But experience tells us that practises and approaches of various judicial officers vary significantly.
4. Particularly in representing and appearing on behalf of a client at a first return of an interim hearing not only do we need to be cognisant of PD 2 of 2017 but now also (in Brisbane) of the Brisbane Case Management Initiative.
A Need For Practitioner Improvement
5. The need for refinement of practitioner skills and conduct in interim/first return appearances was recently highlighted in Matenson19. Justice Murphy of the Full Court of the Family Court provided some helpful hints and recommendations in order to assist judges sitting in busy duty lists.
6. Some of the themes in Justice Murphy’s decision resonate in PD 2 of 2017. Often referred to as the “10 page rule”, this practice direction was designed to “ensure that proceedings are conducted expeditiously and consistently with the objectives of early identification of the issues in dispute requiring adjudication and the efficient use of judicial resources.”
7. In Matenson, Justice Murphy, sitting alone as the Full Court, had before him an appeal scenario that is not uncommon for most family law practitioners. Briefly it was a parenting matter where there was an existing parenting order, the Mother had not been providing time, the Father was seeking time be reinstated. The judge had dismissed all applications and set the matter down for final hearing, some several months away. His Honour upheld the appeal, essentially on the grounds that the judge had not engaged with the issues. However, under the heading “Additional Observations” Justice Murphy added;
18 The Annual Report link for 2011 on the Federal Circuit Court of Australia website was broken accordingly these figures were unavailable. 19 Matenson & Matenson [2018] FamCAFC 133 per Murphy J 15
72. I have already made comment on the extraordinary size of the lists before judges of the Federal Circuit Court. It is by no means uncommon for in excess of 30 matters to be listed. By reason of simple arithmetic the average time that can be allotted to each matter as a consequence surely gives pause for thought as to whether proper process can be invoked and the requirement for individual justice met where interim decisions affecting children’s lives are involved.
73. While simple directions, consent orders and the like can of course be accommodated within lists of that size, I am unable to see how applications for interim relief – albeit “truncated” in their length and detail – properly can be.
74. Increasingly, appeals from interim parenting proceedings reflect the inordinate pressure which the judges making decisions of that type are under. The pressure for hardworking judges seeking sincerely to do the best they can in difficult circumstances is crushing. It is creating appeals that would otherwise not occur. Many of those appeals are based, validly, on assertions of procedural unfairness and assertions that issues raised by parties – including important issues – are not engaged with and reasons for decisions affecting children’s lives are not being given.
75. There is a plain need for expedition in interim decision making and a plain need for sufficient human and other resources to meet that need. However, the need to maximise the number of cases heard and the speed at which they are heard should never take the place of proper process – even if, as insufficient resources dictate, that process is “significantly curtailed”, and even if, as might reasonably be expected, reasons for decision – particularly ex tempore reasons – lack the elegance or expansiveness that added time might afford them.
76. Authority from all jurisdictions and, crucially, the High Court are all to like effect: adequate reasons are not necessarily lengthy reasons. Adequate reasons have regard to the particular circumstances of the proceedings and the nature and extent of the issues to be determined. Yet adequate reasons are a fundamental part of dispensing justice.
77. The factors just referred to have, or should have, an additional effect. Legal practitioners owe their first and fundamental duty to the court and the administration of justice. Much can be done by them – and consistent with their duty should be done by them – to assist judges faced with the issues just referred to.
78. Clear and precise identification of the nature of the proceedings; their basis in statute and decided authority and, crucially, the issues to be decided expressed succinctly and cogently, should be the rule, not the exception.
79. There should be a clear understanding of what the Act and authority dictates as to the nature of the relevant judicial determination and the limitations inherent in the relevant process. The passage from Goode quoted above has particular resonance. Concise, accurate and cogent references to agreed or uncontentious facts and less contentious matters must form the parameters of what is argued and sought by way of orders.
80. Draft orders should always be provided and, rather than being produced by rote, should reflect the evidence and the inherent restrictions just referred to. Far too often draft orders, when indeed they are provided, do not reflect that appropriate thought has been given to whether the evidence, confined in the manner earlier described, justifies any such order. All too frequently orders are sought for which there is no evidentiary foundation at all.
81. The matters just referred to should, as a minimum, be reflected in a document for the judge. This is by no means to suggest a lengthy (and consequently expensive) document – in the vast majority of cases such a document, much of which could be in dot point form, can be confined to a page or two.
82. Time spent waiting for a hearing – or indeed the days ahead of a hearing – can be used productively by exchanging such documents and agreeing upon the very same uncontroversial facts and truncation of issues that can, and should, be dealt with in the necessarily confined interim process.
83. Importantly, a practitioner’s primary duty to the court and the administration of justice includes assisting the judge by helping to identify and crystallise issues, evidence and the like when a party is self-represented. That is not a duty exclusive to, or confined to, the ICL.
84. These things are not difficult. They should be a perfectly unexceptional part of proper professional practice (and the rendering of a fee which has its basis in the provision of proper professional services).
85. I hasten to say that my comments are not directed specifically to, or prompted by, anything done or not done by the legal practitioner or judge in this case. Rather, they are of general application and are born of increasing exposure to – and frustration with – characteristics increasingly common to 16 appeals from interim decisions – particularly interim parenting decisions - and the consequences for the parties of those appeals.
The Brisbane Case Management Initiative
8. Commencing 4 June 2018, the Brisbane Registry of the FCC commenced the Brisbane Case Management Pilot. In essence, the Pilot ;
8.1. Disbands the docket system of listing of matters;
8.2. “Duty” or first return matters are listed before one of three duty judges;
8.3. Trials are now allocated to an available trial judge and the parties notified via the daily court list;
8.4. Longer / urgent duty matters may be allocated to an available trial judge
9. Although the timeline for the Pilot was originally to conclude on 31 December 2018, to the best of my knowledge the Pilot continues to run with the duty judges currently being their Honours Spelleken, Coates and Middleton.
10. From observations of the daily listings in the Brisbane FCC it appears that the three duty judges regularly have 20-30 matters in their list each and appear to sit between 4 to 5 times each per week.
11. Be aware also that matters that have reached consent will be transferred to a Registrar and expect in the foreseeable future a greater role from the Registrars in first return duty matters.
Some Recommendations For First Appearances
12. Drawing upon the “additional observations of Justice Murphy, the provisions of PD 2 of 2017 against the background of the Pilot, the following are some of my recommendations for family law practitioners representing clients likely to have a first return appearance in the Brisbane FCC.
What is the essential and most important issue requiring determination ?
13. This question should be on your mind the moment your client walks into your office. Give realistic advice about methods of resolving the dispute without court and whether “chunking” a mediation into smaller parts is a better option – e.g. just getting first time arrangements and a family report in place.
Know the nature of the proceedings.
14. What are the basic elements of the relief being sought (e.g. exigent circumstances Morgan v Miles20 e.g. a likely property entitlement and a source of funds in Strahan21 applications). What is the basis of the relief in statute and decided cases.
Know how a Court might approach your proceeding.
E.g. Goode type matters as compared to interim spousal maintenance applications – either or neither might be heard upon a first return (unless circumstances of urgency exist) and may be set down for a short hearing at a later date.
20 Morgan & Miles [2007] FamCA 1230 21 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 17 Keep your “Orders Sought” contained.
15. Only those disputes that need determination on the first date need expression and only those orders about which there is evidence should be pursued.
The evidence must meet the elements required to support the Orders Sought.
16. Set out concisely the agreed facts and/or non-controvertible facts. The asserted (or disputed facts) should be clearly and concisely stated. Often chronologically is best. Avoid hearsay or opinion (best practice even on interim hearings). DO NOT draft witness statements that are generalised, unparticularised, contain rhetoric, or are conclusions.
Talk to your opposition.
17. There was this invention in 1875 by Alexander Graham Bell. Use it. Use it well in advance of the first return date. Work out what orders / issues are not in dispute and what may need to be argued. Will the first return be the best date to argue ?
Draft orders.
18. Have your draft orders. Use your templates to guide you but be prepared to discard all the unnecessary provisions.
Outline and Chronology.
19. Avoid war and peace. If possible, restrict to no more than two pages each of the most important points / events. This is a useful document particularly if the decision is reserved. The Outline should include the documents you “read” and the Chronology should clear identify and distinguish between the agreed facts and those facts that are alleged/contended for.
Get To Court Early and Attempt Settlement.
20. If not the entirety of interim issues, then at least the non-controversial matters. Fun fact – the Family Court building usually opens at 8:30 am.
Be An Advocate.
21. Your motto should be short and sweet (or make yourself a small target). Know your case inside and out. Answer the judge’s question. Usually “yes” or “no” is the best approach. If you don’t know an answer (and you can’t get a response from your client) “I do not know” is also acceptable. Do not mislead the court. Do not rely upon evidence from the bar table. Explain the outcome to your client and any obligations upon your client flowing from the order.
Contemporary ADR Practices in Family Law Arbitration and Mediation
Brief History
22. Since the introduction of the Family Law Act (Cth) in 1975, the practice of family law in Australia has mirrored that of many other civilisations. The changes have been rapid. The phrase “blended family” is almost ubiquitous in modern day litigation in comparison to even 10 years ago.
23. Complex dynamics including de facto relationships, same sex relationships, surrogacy, international relocation right down to the everyday issues such as domestic violence, drug 18 and alcohol abuse, mental health issues, racial identification and whether Sally can participate in one or two weekend extra-curricular activities exemplify the width of likely issues that arise in family law matters.
24. And that is just in parenting matters !
25. The legislature has enacted many amendments to the Act and introduced many other subsequent legislation that augments and enlarges the jurisdiction of both the Family and Federal Circuit Courts of Australia. State Governments have also enacted acts and rules with special application to family law issues; e.g. stamp duty upon transfer of property pursuant to a family law order.
26. The length and breadth of the daily diet of disputes a judicial officer is called upon to consider is wide. And it is long. The additional non-law skills a family law practitioner now needs to navigate the family law system for their client – the soft skills – is also ever increasing.
27. Mediation has always been a form of dispute resolution that was enshrined in the Act and supporting regulations. The Order 24 Conciliation Conference was a mandated event where parties were compelled to prepare certain documents, appear before a Registrar of the Family Court and be prepared to negotiate a settlement. As with most government services, it lacked certain fundamentals of mediation, was usually very evaluative in style, poorly resourced and hence limited in time. Because a litigant did not have to pay for the service and there was no consequence for a failure to genuinely negotiate, a new model was born.
28. No precise timeline can be pinpointed but in the early 2000s private mediation became popular. And it was not just the profession adopting this model, the judicial officers, acting to protect vital registrar resources began “directing” parties to private mediation where assets and means were more than modest.
29. As first return directions often contained the requirement for mediation, pre-litigation mediation has also become more common.
ADR – A Contemporary Practice Meeting A Generation of Issues
30. The primary reasons mediation (both before and during court proceedings) and now arbitration are common in 2019 is for the same reasons nearly twenty years ago; • Cost of litigation • Delay in court judgments • Uncertainty of court outcomes
31. Around the same time as the words “collaborative law” began to emerge it seemed that not only had clients become resentful of the litigation model of family law, practitioners also were becoming increasingly disenfranchised with the combative and competitive approach of practising family law and were looking for a more empathetic way to achieve outcomes for clients. Those advocating for increased mediation of disputes therefore had a very eager and receptive audience listening.
32. Perhaps reflecting this resentment and desire for change the Rules Committee of the Family Court of Australia introduced the new Family Law Rules in 2004. These Rules introduced a paradigm shift in the way family lawyers not only conducted proceedings in family law but moved the focus of dispute resolution to the commencement of the matter rather than at some point along the litigation pathway.
33. And thus grew the field of family law mediation.
19 34. Over the years, mediation in family law has become common place in Australia, and predominantly in Queensland. Two key factors have seen the widespread implementation of mediation. Firstly, the high success rate (between 80-90% settlement rate is seen as the industry average). Secondly, Court delays have spiked interest in mediation with trial callover blitzs in the major registries of the FCC’s strongly urging parties to exhaust mediation before obtaining trial dates. This was emphasised when the courts arranged for a list of mediators and their hourly fees complied in a document placed at the bar table. Judge Harman is in charge of collating the details of all ADR practitioners Australia wide in order that this resource is available in all FCC registries.
PDR in 2019
35. With what has been said elsewhere in this paper concerning the expansion of FDR to property matters, the recommendation of a requirement of a “genuine steps statement” and the likelihood that a merged set of FCA and FCC Rules will evolve with an overarching purpose of resolving disputes quickly, inexpensively and efficiently as possible, it is time for mediation, and its cousin, arbitration, to be considered as primary dispute resolution and not the “alternative”.
36. With the greatest of respect to the judicial officers in the family law jurisdictions, heading to court should be the worst outcome for a separated party. Henceforth the acronym ADR will be eschewed and replaced with PDR (primary dispute resolution).
37. I would also include collaborative law as another arm of PDR but will leave experienced collaborative lawyers to argue for or against that proposition.
Contemporary Mediation Practices
38. The following are from my own observations and I would readily concede that my data set is drawn from self-funded and usually represented clients where a wait time for mediation is restricted only by the availability and readiness of the parties themselves. These observations may not be true for government funded mediation services such as the legal aid offices of various states and the FRC around Australia.
Chunk or Interim Mediation
39. Quite common in parenting matters where the separation has occurred only recently or there has been a recent change to parenting / child circumstances.
40. Parents will undertake usually a half day mediation with a view to reaching agreement upon the next few steps and what other events should occur in the meantime. An obvious example would be a staged increase of a child spending day time building to weekend time with a parent alongside the engagement of the parents with a family therapist during that process.
41. Indeed, it has been my observation in the last 12 months that parties to a parenting dispute are increasingly open to the concept of agreeing to generalised parenting arrangements with the advice of a family therapist be sought with regard to the increase of any particular arrangement. It is likely this is due to the increased awareness of family law practitioners to the child-focused way a good family therapist can not only diffuse parental angst but also upskill parents for the future.
42. Property matters can also benefit from a chunk approach to dispute resolution avoiding what I refer to as the “cash grab” interim applications that usually achieve nothing other than providing a source of funds for legal representation and entrenching the parties in positions which become more and more entrenched by the time of a final mediation occurs.
20 43. Often the cost of both parties proceedings to Court upon a Strahan type application without or without injunctive relief is more than the costs of funding the dispute to a mediation…including spousal support !
Multi-party Mediations
44. Third-party creditors, usually a relative or a business partner who asserts a loan to the parties, are often parties to the litigation thus multi-party mediations are not uncommon. More recently, the trustee in bankruptcy (where a party has become bankrupt during the proceedings) has been willing to participate in family law mediations. The dynamics involved in these types of mediations are often complex but are certainly appropriate for mediation, mostly because those third-parties are less emotionally connected to the subject matter of the dispute and likely to be more commercially focused.
45. Parenting mediations too are becoming multi-partied. Obviously where a relative, such as a grandparent or aunt/uncle, has stepped into the role as primary carer of a child, that person will sometimes seek to maintain that position despite both parents – now separated – also seeking parenting arrangements in their favour.
46. Last year, I mediated a parenting dispute between two same-sex female partners where the child’s father donated sperm to one of the mothers. It had been agreed at the time of donation that the father would not pay child support nor be involved in the child’s life. However, the father’s position had changed at the time of the mediation, having donated sperm again to the same mother producing another child, this time being the child of the mother and the mother’s new same sex partner. The father was in a same sex relationship as well. That mediation was difficult, emotionally charged and challenging for me as a mediator….but it did settle with the child living with one mother and spending time with the other non-biological mother and the biological father.
Arb-Med
47. In what was a novel solution agreed upon by the parties and the court, I was appointed to arbitrate a property dispute with the discrete purpose of resolving five or six matters. Most of those matters were common issues such as whether or not a debt was a matrimonial debt, add-back disputes and so on. One of the issues was to determine whether or not a particular business was property capable of being valued.
48. Upon determination of those issues and issuing an award I was then appointed as mediator of the entire property and parenting dispute. Unfortunately, the matter did not settle. The parties themselves were ill-suited to mediation. However the pragmatic and novel approach adopted by the legal representatives must be congratulated and I would argue that Arb-Med (as opposed to Med-Arb) is a viable model to adopt in certain circumstances. Many mediations stall or fail on single issues such as relative loan/gift arguments, inclusion/exclusion of debts, add-backs, superannuation/cash mixes which might appropriately be resolved firstly via. a discrete issues arbitration followed by a mediation.
49. Necessity is the mother of all invention.22
Judicial Mediations
50. Practice Direction No. 1 of 2019, introduced the process of judicial mediations in family law matters in the FCC.
22 Maybe Plato 21 51. Judicial mediations are not intended to be a substitute for private mediations and parties are expected to continue to exhaust alternative dispute resolution options. Matters suitable for judicial mediation are set out in the practice direction;
• Both parties are legally represented; • Where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation; • Property disputes; • Parenting disputes where there is no allegation of serious risk and/or family violence; • Appropriate child support matters; • Compliance with orders for a prior unsuccessful private mediation; • A risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute; • Any other matters identified as suitable, by the docket Judge.
52. As at 25 February 2019 there has only been one such order for judicial mediation in the Brisbane FCC.
Mediation Is The Ends – Not a Means to an Ends
53. More and more frequently, the mediations I am involved in are occurring pre-litigation. This has to be due to the focus and professionalism of the family law practitioners involved.
54. With this comes a greater degree of preparedness to mediate. Those mediations that do succeed often have one or more of the following traits;
• The mediation has occurred very early in the dispute or at the earliest possible time when issues have perhaps crystalised.
• Both parties are sufficiently prepared for the mediation including having; o all relevant evidence available / disclosed; o expectations established and tested (return of the WATNA and BATNA) o groundwork undertaken in advance – eg therapy, tax information o expert opinions available in advance o a “big picture” view of why the parties are attending mediation
• The right mediator chosen at the right time. Experienced family law practitioners advise their clients to select a mediator based upon mediation skills, knowledge of the law in the area of the dispute and seniority/trust. The price of the mediator is usually a low-ranking consideration. The mediation is a concluding event in a timetable of agreed dispute resolution steps.
• The parties and their legal representatives have conferred in the days immediately preceding the mediation. The clients are comfortable in the knowledge that they are fully prepared, understand completely their advices and are otherwise free from anxiety about the process of mediation.
• The legal practitioners come ready to prepare a binding agreement.
• The legal practitioners themselves arrive early to the mediation or are already well in advance of discussions in order to focus the clients on the bigger picture issues.
• The legal practitioners role model appropriate mediation behaviour to their clients. Theatrics are left at the office.
• The legal practitioners know why and when a matter can be satisfactorily resolved by heads of agreement. 22
• Any agreement reached is immediately formalised by way of final consent orders and issues of “buyers-remorse” are handled responsibly and professionally.
The Rise of Arbitration in Family Law Financial Disputes
What is Arbitration?
55. Arbitration is another form of alternative dispute resolution. It is a formal non-judicial method of resolving a dispute where two or more parties refer their dispute to an independent third person (the arbitrator) for determination (the award). Arbitrations are usually conducted pursuant to legislation and in the case of family law disputes the relevant legislation can be found in sections 10L to 10P and sections 13E to 13K of the Family Law Act 1975 (Cth) and Part 5 of the Family Law Regulations 1984 (Cth).
56. The essential difference between arbitration and court proceedings is that in an arbitration it is the parties themselves who determine how the arbitration is conducted including the degree of formality or not of the arbitration itself.
57. Arbitration, as a form of dispute resolution is widely employed in commercial disputes and is an appropriate form of resolving family law property disputes as it is; ▪ Efficient and quick ▪ Private and confidential ▪ Final and enforceable ▪ Is conducted in accordance with the law.
58. “Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.” (s10L) The following applies strictly to arbitrations within the family law jurisdiction.
59. It is important to understand that there are two forms of arbitration, court ordered (s13E arbitrations) and private arbitrations. Section 13E arbitrations can only deal with Part VIII proceedings or Part VIIIAB (but not in relation to a Part VIIIAB financial agreements) proceedings. Private arbitrations have a broader area of disputes that can be determined (see s10L). Below is a list of all the type of disputes that can be arbitrated; ▪ Property including declaration of interests including superannuation splitting orders 23 ▪ Spousal maintenance ▪ Setting aside of orders pursuant to s79A ▪ Declaring the existence of a de facto relationship ▪ Declaring the validity of a binding financial agreement (ss90G,90K and 90KA) ▪ Proceedings pursuant to s106B (to set aside a transaction)
56. Child support or parenting matters are unable to be arbitrated for the purposes of the Family Law Act. However there is a strong push to expand the bounds of disputes that may be arbitrated with the present Chief Justice being a vocal supporter of arbitration24 and its extension to parenting disputes. 25
23 The power of the Court to make a splitting orders is contained within Part VIIIB. As the relevant sections commence with the notion of the s79 order including an order in relation to superannuation interests conventional wisdom suggests splitting orders are part of the Part VIII process nd capable of being the subject matter of an award. 24 State of the Nation Address, the Hon. Will Alstergren at the 18th National Family Law Conference - 3 October 2018 25 Interview with The Australian, March 2018 23 Who Is An Arbitrator
57. The relevant provisions governing the registration of arbitrators speak to the high level of experience required. An arbitrator needs to meet the following qualifications and standards (see reg 67B); ▪ Be a legal practitioner ▪ Be either; o An accredited family law specialist; or o Practiced for at least 5 years and at least 25% of that work being in relation to family law matters ▪ Have completed specialist arbitration training and included on a list kept by a nominated body. AIFLAM is the nominated body within Australia.
Types or Forms of Arbitration
58. As the parties ultimately determine the procedure for arbitration there are many different variations and there is no one strict “model” of arbitration however the following are the most common; ▪ On the papers arbitration: Here the parties file or lodge their evidence in affidavit form and thereafter lodge written submissions to the arbitrator who then makes an award. There is no “hearing” as such and neither party gives evidence or is cross-examined. This is the most cost and time effective form of arbitration and suitable where there are not detailed findings to be made or complex issues to determine. Indeed, this form of arbitration is most appropriate where the dispute revolves around weight to be given to s79 matters. ▪ Panel arbitration: More than one arbitrator is appointed to either provide a perception of impartiality – i.e. male / female – or where one arbitrator is from a particular field of specialty such as an accountant where business valuations may be in issue. A panel can be used for all forms of arbitration however there may be a duplication of cost. (See Queensland Arbitrations – www.queenslandarbitrations.com.au) ▪ Final offer (or pendulum) arbitration: Where the decision is made based upon the most reasonable of the offers exchanged between the parties. This type of arbitration promotes the parties to be reasonable in their positions in order to “win” the arbitrator’s decision; if the gap between the two positions is small the parties may bridge it themselves by splitting the difference rather than running the risk of ultimately being unsuccessful. This form of arbitration is particularly useful where parties agree upon most factual issues but are simply at an impasse upon the outcome. The disadvantage in this form is that the parties may make quite disparate and inequitable proposals leaving the arbitrator with no alternative but to adopt the least inequitable option. ▪ Simple arbitration: Where the parties agree that there is to be some limited formality to the arbitration process including the giving of oral evidence / cross-examination but may not require the formal rules of evidence to apply nor the evidence to be recorded. ▪ Complex arbitration: These arbitrations follow procedures similar to a court proceeding where evidence is given under oath and is recorded. Whilst the process may take longer and cost more the arbitration itself is still likely to be cheaper and provide the parties with an outcome far sooner than a judicially-determined outcome.
What Are The Events Leading Up to Arbitration
59. Firstly there needs to be agreement between the parties whether arbitration is appropriate for their dispute as the consent of the parties is required (see s13E where the proceedings are already in court). 26
60. The following are just some examples / reasons why arbitration is likely to be indicated for your dispute
26 See article I wrote about the Pro’s, Con’s and Myths of Arbitration which may demystify issues surrounding arbitration. 24 ▪ A desire to get off the emotional rollercoaster of litigating in court ▪ Sufficient disclosure has occurred27 ▪ Neither party has a tactical advantage by delaying the outcome ▪ The lawyers understand arbitration and its processes ▪ A good arbitrator is available ▪ Family law court waits are long ▪ Family law court “docket” judge may be undesirable for particular matter – for a range of reasons ▪ Privacy is important ▪ Parties desire to avoid adjournments or delays ▪ Parties desire a fixed cost ▪ Parties suspicious of court system ▪ Parties wish to custom build the process to their dispute ▪ Parties may wish to use arbitrator’s experience to assist design a process for their dispute ▪ The dispute does not involve a significant number of credit issues that are crucial to the outcome ▪ No significant issues of personal safety involved 28
What Happens at an Arbitration
61. Once the parties agree upon arbitration and an arbitrator, the first step is for the parties (legal representatives) and the arbitrator to have a preliminary arbitration meeting. This meeting is to define the issues the arbitrator is to determine and to reach an Arbitration Agreement. It is the Arbitration Agreement itself that spells out what is to happen at the arbitration.
62. The steps then that can occur leading up to and during the arbitration can be variable and range across a continuum of the following;
No lawyers present Solicitor and barrister present One arbitrator Panel of arbitrators One affidavit from party Number of affidavits from party plus witnesses No other documents Exhibit book No opening address Opening address No evidence / cross- Evidence in chief plus cross examination examination Parties not present Parties present No actual hearing Arbitration conducted in quasi-tribunal rooms Strict time limit Flexible time limit No recording of evidence Evidence recorded and transcribed No discovery Full discovery Minimal issues Detailed issues Agreed statement of facts Determination of facts
63. In my arbitrations I have a standard checklist of matters to consider prior to the preliminary arbitration meeting. AIFLAM have produced an Arbitration Kit with useful information including a draft Arbitration Agreement.
27 Amendments to the Family Law Rules that are effective 1 April 2016 will assist disclosure processes with subpoena and disclosure obligations being clearer in arbitrations 28 Note however that there is no reason why the arbitration – with agreement – cannot be via telephone or not in the presence of the other party which makes arbitration potentially more appropriate 25
Who Can Be Present and Confidentiality
64. Who is present at the arbitration is obviously a matter for agreement. The Arbitration Agreement signed the parties will either provide that it is a condition of the arbitration that the proceedings are to be confidential or otherwise. Ordinarily the parties desire the proceedings to be confidential. That does not mean however that a family law court cannot receive into evidence what was said or filed in the arbitration upon a review of the decision of the arbitrator pursuant to s13J.
Voluntary Process: Arbitration Agreement Cannot Be Departed From Without Agreement
65. Any application to a family law court for referral of a proceeding to arbitration must be made jointly by all the parties to the proceedings (reg 67D) and a Court can only make such a referral if the parties consent (see s13E). It follows therefore that proceeding to arbitration is voluntary.
66. It also follows that only if the parties agree to all of the following matters in their arbitration agreement that an arbitration can proceed; ▪ the name, address and contact details of each party to the arbitration; ▪ the name of the arbitrator; ▪ the date, time and place at which the arbitration is to be conducted; ▪ the issues to be dealt with in the arbitration; ▪ the estimated time needed for the arbitration; ▪ information about how the arbitration will be conducted (for example, information about the exchange of documents and witness statements, scheduling and receiving expert evidence); ▪ the circumstances in which the arbitration may be suspended or terminated; ▪ the estimated costs of the arbitration, including the costs of any disbursements that may be incurred in respect of the arbitration (for example, hire of a venue for the arbitration).
See reg 67F
How Long Will It Take
67. How long the arbitration ultimately takes is, again, a matter for agreement for the parties and the arbitrator. Ordinarily, an arbitrator will be selected because of her or his agreement to provide an award within a short timeframe. This is one of the attractions to arbitration. There are no time limits upon family law court judges to furnish decisions whereas an arbitrator is unable to be paid for the arbitration until the award is handed down (see sect. 10N(1) and reg. s67(2)(d)).
What Happens Afterwards
68. Once the arbitration has been conducted the arbitrator is then required to hand down his or her award. The award must be in writing and contain a concise statement setting out: ▪ the reasons for making the award; and ▪ findings of fact in the matter, referring to the evidence on which the findings are based.
See reg 67P.
69. Either party may register the award pursuant to s13H by application in accordance with Form 8 of the Family Law Regulations 1984 (Cth), see reg. 67Q.
26 Legal Status of the Award
70. Pursuant to sect. 13H(2) an award that is registered pursuant to sect. 13H has effect as if it were a decree made by that court. Enforcement proceedings can be initiated in the same way as enforcing property orders made by a court (reg. 67S).
71. Awards, are also subject to review in a similar way that orders of courts can be appealed. The grounds for review are contained in sect. 13J on a question of law. Questions of law are quite distinct from errors purely about a finding of fact however what are “questions of law” are numerous and indeed quite vexed as this publication on the Federal Court of Australia website would contend.
72. It is clear though that the failure to provide adequate reasons is an error of law. A simple review of a sample of appeals to the Full Court of the Family Court would reveal that a common ground of appeal is a failure to provide adequate reasons.29
Do I Need a Lawyer
73. I would argue strongly against entering into an arbitration without the representation of a lawyer. However, where the arbitration is a simple or an “on the papers” model of arbitration there is no reason why a party cannot agree with her or his lawyer to limit the scope of work to be conducted, ordinarily this would be the preparation of any affidavits and the written submission.
Tips for Lawyers
74. Whilst arbitrations are less formal and flexible than court hearings each arbitrator has differing approaches as to what a lawyer is to do and how a lawyer is to behave before and after an arbitration. The following are my expectations; ▪ At all times to conduct themselves with a degree of professionalism that is required under Legal Professions Act ▪ Educate their clients about the nature of the dispute (i.e. the law) ▪ Educate their clients about the nature of arbitration and the various procedural steps available ▪ Participate enthusiastically in the preliminary arbitration meeting and have either exchanged proposals with their opposing colleague/s about the proposed matters to be included in the Arbitration Agreement or at least be ready to respond to questions about these matters with reasons why / why not a proposed step should / should not be taken (See a useful checklist of matters to be agreed upon) ▪ Allow me to conduct the preliminary arbitration agreement and support me in designing the most appropriate, time and cost-effective method of arbitrating the dispute ▪ Encourage your client to understand the desirability (both from a cost and time perspective but also from the perspective of simplifying the process) of refining the arbitration to only those issues that are critical to the determination of the dispute. ▪ Provide your client with legal information and advice about their rights including the consensual nature or arbitration and their duty of full and frank disclosure. ▪ Provide accurate estimates to me of the amount of material likely to be filed / lodged and the likely time frame for the arbitration hearing. ▪ After the arbitration, to promptly attend to the registration of the award. ▪ Maintain confidentiality of the arbitration.
75. This is just a summary of the concept of arbitration and please feel free to contact me at [email protected] if you have queries about arbitration. You will find most
29 See Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10.
27 arbitrators including myself are receptive to a no-obligation discussion with you and your opposing colleague about the desirability or suitability of arbitration for a particular matter.
Litigation in the Child Protection Arena30
General Outline of the Child Protection Law in Queensland
1. The legislation providing for the protection of children is contained within the Child Protection Act (Qld) 1999 (the CPA). The CPA was amended in 2014 following the Queensland Child Protection Commission of Inquiry conducted by the Hon. Tim Carmody QC.31 This paper focuses upon actual child protection proceedings. The CPA is however much wider in its operation.
2. The starting point in child protection proceedings is s53(2);
A child protection order is made to ensure the protection of a child the Childrens Court decides is a child in need of protection
3. In determining what order to make, the Court must have regard to the principles stated in sections 5A to 5C to the extent relevant.32 A Court is also compelled to state reasons for the decision.33
4. The “paramount principle” set out in sect. 5A is;
The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount.
5. The “other general principles” set out in sect 5B are;
The following are general principles for ensuring the safety, wellbeing and best interests of a child— (a) a child has a right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family; (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child; (e) in protecting a child, the State should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests; (g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care; (h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin; (i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
30 I gratefully acknowledge the assistance of my colleague Ms. Anne-Maree McDiarmid in compiling a list of recent State appeal decisions relating to child protection. 31 Taking responsibility: A Roadmap for Queensland Child Protection, June 2013 32 s104(1) 33 s104(2) 28 (j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); (k) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (l) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values; (m) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child.
6. Section 5BA contains principles for achieving “permanency for a child” whilst sect. 5C provides for the additional important principles to be considered when the relevant child is an Aboriginal or Torres Strait Islander.
7. Section 59 provides that a Court may only make a child protection order if it is satisfied that a child is in need of protection, an order is appropriate and desirable for the child’s protection and the protection order sought to be achieved by the order is unlikely to be achieved by an order on less intrusive terms.
8. A “child in need of protection” is defined in s10 as a child who
(a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering harm; and
(b) does not have a parent able and willing to protect the child from the harm
9. “Harm” is defined in s9 as;
(1) “Harm”, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused.
(3) Harm can be caused by – (a) physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
(4) Harm can be caused by –
(a) A single act, omission or circumstance; or (b) A series or combination of acts, omissions or circumstances.
10. The definition of “a child in need of protection” requires the Applicant to establish that the child does not have a parent able and willing to protect the child from the harm but does not require the Applicant to establish misconduct on the part of the parent. The primary focus on whether a child is in need of care and protection is upon the child’s needs rather than an inquiry primarily focused on finding fault with the parents. This is reinforced by the CPA.
11. The relevant mandatory provisions that the Court must be satisfied of before making a child protection order are otherwise detailed at s59(1) such as the holding a family group meeting (conference) and the development of a caseplan.
12. The paramount purpose of the proceedings is to determine what is in the best interests of the child and the rules of evidence and procedure should serve and not thwart that 29 purpose. (See Dale v. Scott ex parte Dale [1985] 1 Qd R 406 cited with approval by Morzone QC, DCJ in MDS v Director of Child Protection Litigation & Ors34)
13. In relation to evidence, the Court is note bound by strict evidentiary rules and need only be satisfied of the matter on the balance of probabilities.35
Unacceptable Risk of Significant Harm
14. The words “unacceptable risk of harm” have received significant attention in the family law jurisdiction and the unacceptable risk test of M and M (1988) 166 CLR 69 is the relevant authority.
15. Ultimately, (and this is the same in both family law courts and child protection courts) the only duty of the Court is to “make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child” and does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse”. 36
16. It is, however, incumbent upon the Court in cases of alleged significant harm or abuse to determine whether the evidence was such to establish that there would be an unacceptable risk to the child if they were to spend time (supervised or otherwise) with a parent. 37
17. In cases where the Court is satisfied (according to the civil standard of proof with factors mentioned in section 140 of the Evidence Act (Cth) or Briginshaw and Briginshaw) that it is likely that the significant harm or abuse occurred, it is not constrained from making such a finding.
18. Similarly, if the Court is unable to find that the significant harm or abuse occurred, then, as a separate question, the Court should consider whether it can be satisfied that “the allegation is not proved” 38 .
19. The Court may also determine that there is insufficient evidence to determine that the alleged significant harm or abuse did or did not occur. 39 That in turn leads to the wider question of whether there is an unacceptable risk of sexual abuse occurring if a child spends time with a particular parent.
20. The unacceptable risk test is well settled and is “best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse” (M and M).
21. In M v M the Court said, “to achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.
22. The test has not been confined to only cases of actual sexual abuse, but all cases where the risk is actual, potential, physical, psychological or emotional.
34 [2017] QChC 6. 35 s105 36 M and M (1988) 166 CLR 69 37 A and A [1988] FLC 92-800 38 B and B [1988] FLC 91-957 @ 76,923 See also W and W: Abuse allegations unacceptable risk [2005] Fam CA 892 39Ibid @ 76,923 30 23. The level of risk requires something more than a “bare possibility” that something may be done or omitted to be done. The level of risk must reach the level of unacceptable; see McHerson JA at page 2 Dunnett v. Gebers and the D-G, Dept of Families, Youth and Community Care (unreported Court of Appeal, 21 March 1997).
24. In the context of child protection jurisprudence, it is respectfully argued that most District Court appeal decisions have been consistent with the decision in M v M.
25. Per his Honour Morzone DCJ in MDS v Director of Child Protection Litigation & Ors40);
“When determining whether a child is “a child in need of protection” the main focus of the court is upon the child’s needs and whether an order is required to meet them, rather than upon the parents’ actions, omissions, or incapacity which may have led to the harm or risk of harm. It seems to me that the concept should be broadly considered such that risks can be actual or potential, abuse or neglect. Each area of abuse must be considered on the basis of whether the current or future risk is unacceptable and that this requires a consideration of the child’s exposure to actual and potential risk in the particular circumstances of each case. The legislation is purposely broad.”
26. In AG and TG v DCPL and the Separate Representative41 the substratum of facts included that the father of the child had been acquitted of the child’s sexual abuse. The Children’s Court Magistrates at trial had considered it was not necessary for him to make a positive finding of sexual abuse having occurred consistent with the approach of the High Court in M v M. The parents directly challenged that approach upon appeal. His Honour Horneman- Wren SC DCJ considered that ground of appeal as follows:
[48] In their oral submissions, counsel for each of the appellants contends that the learned Acting Magistrate erred at law in concluding that it was not necessary that a positive finding of sexual abuse having occurred be made. They say that his Honour misapplied the judgment of this Court in T v Department of Child Safety [2013] QChC 1 in that regard.
[49] The argument ran that in this case such a finding was necessary as without a positive finding of sexual abuse there would be no cogent evidence upon which a finding of unacceptable risk could be made. Having stopped short of finding that S had been sexually abused, there was no cogent evidence to find that the two girls were at an unacceptable risk from Mr G.
[50] In my view, the matters to which his Honour referred in reaching that conclusion in paragraphs [135] to [147] do provide a basis for the conclusion to be reached that the girls were at an unacceptable risk. It was, therefore, not necessary for a positive finding of sexual abuse to be made.
[51] The Magistrate’s reasoning is consistent with the reasons of the President in T at paragraph [40] where his Honour reached a similar conclusion on the facts of that case. The fact that Mr G was acquitted was well understood by the Magistrate. That acquittal did not, however, render a consideration of the allegations irrelevant to a consideration of whether abuse was established to the civil standard but, as I have said, in any event, the Magistrate could not be satisfied that it had. Those allegations remained relevant, though, to be considered with all the other relevant evidence as to whether the Magistrate was satisfied to the requisite standard that the girls were at an unacceptable risk.
[52] This ground has not been made out.
The Orders A Court Can Make
27. The types of orders a Childrens Court can make upon being satisfied the child is in need of protection are informed by sections 12 and 13 which prescribe the effect of an order that grants custody or an order that guardianship respectively to the chief executive;
12 (2) The chief executive, or other person granted custody of the child, has— (a) the right to have the child’s daily care; and (b) the right and responsibility to make decisions about the child’s daily care.
13 If the chief executive or someone else is granted guardianship of a child under a child protection order, the chief executive or other person has— (a) the right to have the child’s daily care; and
40 [2017] QChC 6. 41 [2017] QChC 14 31 (b) the right and responsibility to make decisions about the child’s daily care; and (c) all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long- term care, wellbeing and development of the child.
28. Section 61 prescribes the types of protection orders a court can make. In general terms, orders are;
a. Orders directing a parent to do or refrain from doing something; b. A no contact order directed to a parent c. A supervision order d. A custody order either to a suitable person other than a parent or to the chief executive e. A short-term guardianship order to the chief executive f. A long-term guardianship order to a suitable person other than a parent who is a member of the child’s family / a non-family member / or the chief executive. g. A permanent care order to a suitable person other than a parent or the chief executive.
29. Section 62 prescribes the duration of any particular child protection order. The duration of the order is referrable to the order made.
30. Section 65 permits the court to vary or revoke a child protection order.
B. Thiele Counsel Brisbane Chambers 26 February 2019