separate or divorce Brisbane divorce lawyers

False allegations of domestic or family violence

Are you facing false allegations of domestic violence or family violence?

When parents separate, they are naturally concerned about where their children will live and when they will see their children.

Unfortunately, sometimes one parent may make false allegations of domestic violence or family violence against the other parent in an effort to limit or entirely stop time for that other parent to spend with their children.

The Court when deciding whether to make a parenting order must consider the best interests of a child as the paramount consideration (s.60CA Family Law Act 1975 (Cth))

In determining what is in the best interests of a child, the Court must consider what are known as the primary considerations as well as additional considerations under s. 60CC of the Family Law Act 1975 (Cth).

The primary considerations when a Court is determining what Order should be made in the “best Interest of the child” are:

(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Incidents involving domestic violence or family violence are of real concern for the Court.

In applying the primary considerations to determine what is in a child’s best interests, the Court must give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.

A meaningful relationship “is one which is important, significant and valuable to the child”. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.

Research shows that harm caused from domestic violence or family violence, whether suffered directly or by being exposed to violence in the household is detrimental to the welfare of children in both early and later life. The harm can take multiple forms including physical, emotional and psychological harm.

In the recent trial judgement delivered by Judge Obradovic in the Federal Circuit Court of Australia at Parramatta in Obeid & Saab [2018] FCCA 2198, Her Honour repeatedly noted significant inconsistencies in the mother’s evidence and finds her claims of family violence difficult to accept.

It was found that the mother only raised alleged incidents relating to the father’s inappropriate behaviour towards the child with a Hospital and the Department of Family and Community Services after he had sought to spend overnight time with the child.

The father had made numerous reasonable requests of the mother for information relating to the child to which the mother refused to respond. In evidence the mother claimed that she was not communicating with the father as she was frightened of him, that he was controlling and abusive and that this is the reason why she did not co-operate with him. The Court found that the mother’s evidence did not support her claim.

After careful consideration of the evidence, the Court found that the mother did not establish to the requisite standard the allegations of violence she made against the father.

However, the Court also gave real weight to what is known as the “attachment theory” developed by psychologists. In this case, the mother had relocated with the child a significant distance from the father during the child’s infancy pursuant to an agreement between the parties. This made a close attachment between the father and child more difficult. The Court found that the child’s primary attachment was with the mother and to disrupt that attachment by ordering that the child live primarily with the father (as he had sought) would likely be more detrimental to the child’s development.

The Court Ordered that the parties share responsibility for making major decisions for the child, and that the child live with the mother 9 nights per fortnight and with the father for 5 nights per fortnight.

If you are the parent who is facing false allegations of domestic violence or family violence

If you find yourself in a situation where false allegations of domestic violence or family violence have been made in child-related proceedings, it is recommended you immediately obtain legal advice.

Contact us if you have family law issues concerning parenting arrangements for your children. Our family lawyers Brisbane have the experience to assist you to resolve these issues as well as to resolve property settlement matters for you.

 

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Separated parents school decisions and your options

For separated parents school decisions and especially the decision as to which school your child will attend can be a difficult one.

You should be aware that the decision regarding a child’s current and future education, including what school the child attends, being a major long term decision, is one which ordinarily must be made jointly by both parents. This also applies to other major long term decisions such as the decision concerning a child’s education or changing a child’s name.

Each of the parents of a child under 18 has parental responsibility for the child (subject to any order of the court) (s 61(c)(1) Family Law Act 1975 (Cth) (“FLA)). That responsibility continues even where parents separate or remarry.

Presumption of Equal Shared Parental Responsibility

There is a presumption under the FLA that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA (1) FLA). This includes jointly making decisions about “major long term issues” regardless of whether the child lives predominantly with one parent or not.

 

Where the presumption of equal shared parental responsibility does not apply

That presumption will apply unless the court is satisfied that that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, for example, where the court finds that one parent has abused the child or engaged in family violence.  If the court makes a finding such as that, it is usual that orders are made that provide for the other parent to have sole parental responsibility concerning major long term issues effecting the child.

If the Court makes an order in relation to a child, the parental responsibility of each of the child’s parents changes only to the extent expressly provided for in the order (s 61D FLA). This means that if an order does not specify that one of the parents has parental responsibility, or some aspect of it, then both parents continue to have parental responsibility for the child.

Enrolment at a school/changing schools: what does Equal Shared Parental Responsibility require of parents?

Equal shared parental responsibility for a child requires that parents consult with one another and make joint decisions concerning long term issues such as education, both current and future, including the decision as to which school a child will attend.

The FLA specifies that if under an order two or more persons are to share parental responsibility for a child and the exercise of that responsibility involves making decisions about major long-term issues, then the order is taken to require that decisions be made jointly (s 65DAC(2) FLA).  There is a further obligation on parents to consult about such decisions and make a genuine attempt to reach a joint decision (s 65DAC(3) FLA). If parents cannot reach a joint decision, they may need to attend mediation or family dispute resolution to endeavour to reach agreement or make an application to court for orders.

For separated parents school decisions, in particular, the decision where to enrol your child or whether to change your child’s school is one that must be made by both parents  where the presumption of equal shared parental responsibility applies.

However, the effect of s. 65DAC(4) FLA is that there is no requirement on any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. A school principal when receiving an application for enrolment of a child from one parent can act upon it without having to be satisfied that both parents have jointly decided to enrol the child at the school.

However, if a parent makes an application for enrolment of a child at a school without the knowledge or consent of the other parent and there is no court order in place that gives the applying parent sole parental responsibility for the child, that parent’s credibility will be damaged before the court should the court later be required to consider the issue.  Acting in this manner in particular places in question the capacity of that parent to parent or co-parent and to provide for the needs of the child.

What is the position of a school where there are parenting orders in place?

Generally, it is parties (who are usually parents) and not the school that is bound by an order of the court.  It is not the school’s role to mediate a dispute between parents or to act to enforce terms of parenting orders.

However, under s.70NAC FLA, a person (such as the principal of a school) who is not bound by an order affecting children is taken to have contravened that order if that person:

  • intentionally prevented compliance with the order by a person who is bound by it; or
  • aided or abetted a contravention of the order by a person who is bound by it.

In certain circumstances, that person may be able to show that there was “reasonable excuse” for contravening the order (s 70NAE FLA).

This means then that there can be situations where a school principal or staff member can be  complicit, or have knowingly participated, in a contravention of a parenting Court Order and be taken to have breached the order unless they had a “reasonable excuse” under the FLA for doing so.

Decisions effecting major long term issues for a child can be difficult. For separated parents school decisions to be made for your child can be particularly difficult. If you are having trouble reaching agreement with your former partner, we recommend that you obtain legal advice concerning your options. Contact our experienced family lawyers at LGM Family Law for a complimentary call or fixed rate initial consultation. Ph.: (07) 3506 0651

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Confidential business information in family law proceedings

Confidential business information in family law proceedings. You may be concerned to know if you have to disclose confidential business information or commercially sensitive information in family law property proceedings. Perhaps you are the owner of a business or franchise or in partnership or a joint venture with others.  Obviously, you are concerned to protect the operation and development of the business. What then is your obligation to disclose financial information to your former partner?

Each party to family law proceedings is required to make full and frank disclosure of his or her financial circumstances (Rule 13.04, Family Law Rules).   Documents that are required to be disclosed are all documents that are relevant to establishing your financial circumstances or relevant to the issues in dispute. This will include documents which evidence the business’ earnings as well as documents which show how those earnings may be affected in the future, whether as a result of business plans or otherwise.

The Family Law Rules set out a list of documents that the court would consider appropriate for a party to provide to the other party by way of financial disclosure (see Family Law Rules, Schedule 1 Pre-action procedures item 4 (Disclosure and exchange of correspondence) (5)).

Limit on use of information by other party

However, parties must not use a document disclosed by another party for a purpose other than the resolution or determination of the dispute to which the disclosure of information relates (see Family Law Rules, Schedule 1 Pre-action procedures item 4 (Disclosure and exchange of correspondence) (8)).

 Implied Undertaking by other party

Documents that are provided to the other party to the proceedings by way of financial disclosure are also taken to have been produced on the basis of an undertaking from that party receiving the documents that the documents will be used for the purpose of the case only (see Family Law Rules, Schedule 1 Pre-action procedures item 4 (Disclosure and exchange of correspondence) (9)).

Those two rules confirm what is known as the “Harman Principle” which arose in a case called Harman v Secretary of State for the Home Department ([1983] 1 AC 280) and was subsequently confirmed in the case of Hearne v Street ([2008] HCA 36) where the court pronounced:

“Where one party to litigation is compelled, either by reason of a rule of Court, or by reason of a specific Order of the Court, or otherwise…. to disclose documents or information, the party obtaining the disclosure cannot, without leave of the Court, use it for any purpose other than that for which it was given unless it is received into evidence….” (Ibid [96]).

Injunction to restrain other party disclosing documentation received

In some circumstances, it may be possible to obtain an injunction restraining the other party from disclosing documentation that that party has received from you as part of your obligation to disclose where for example, that other party has threatened to use the information other than for the purpose of the proceeding.

Confidentiality Agreement or Undertaking to Court

You could ask that the other party and their solicitors as well as any other professionals, such as valuers of the business, sign a confidentiality agreement with you. You could seek that the other party provide an Undertaking to Court not to use any documentation that you or any entity with which you are associated  provides in the proceeding, including confidential business information or commercially sensitive information, for any purpose outside the proceeding and to ensure that any other person or entity to which such documentation is provided for the purposes of the proceeding first provides an Undertaking to the Court in similar terms reasonably satisfactory to you.

Application to Court- discretion of the Court

If the other party refuses to sign a confidentiality agreement or to provide an Undertaking to Court, you should be aware that the is no certainty that the Court will  make a restraining order or any order compelling a party to sign such an agreement or provide such an Undertaking.

In proceedings before the Family Court of Australia in Milford & Doumas [2017] FamCA 339, the husband sought an order requiring that the wife sign a confidentiality agreement relating to business documents that the husband had disclosed, including those which disclosed information in relation to the financial circumstances of third parties.

The Court said that there appeared to be no dispute that the financial documents of the business provided by the husband to the wife by way of disclosure were commercially sensitive and may be detrimental to the business if disclosed to a competitor.

However, the Court said that there was no evidence that the wife had provided documents or information as asserted by the husband to her neighbour arising from the disclosure by the husband.  The wife had acknowledged that the neighbour was also a friend of both parties and that he had “discussed general commercial references with her on occasions. The wife denied the allegations made by the husband but conceded that her lawyers referred to her having sought advice from the neighbour as to sourcing appropriate real property valuers.

The Court further said that given the implied and express undertaking which already applied to the wife, it was not satisfied on the balance of probabilities that there was a proper evidentiary foundation upon which the Court could determine that it was proper to make the order sought by the husband.

The Court said that there was no evidence of a need to bring home explicitly to the wife the importance of the documents only being used for the purpose of the proceedings. The Court was not satisfied that the evidence constituted exceptional circumstances for the purpose of requiring a confidentiality agreement where in the case before it any breach of confidentiality by the wife would be detrimental to her own case.

Contact our experienced family lawyers for advice if you have concerns about disclosing confidential  business information or commercially sensitive information in your family law property matter. We have the experience to guide you through your matter and to assist in resolving your family law issues.

 

 

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Breach of Parenting Orders, what can you do

Breach of Parenting Orders without reasonable excuse (less serious contravention)

In this blog we continue looking at what steps can be taken for breach of parenting orders or contraventions of parenting orders and, specifically, the range of powers which the court has to punish a parent for initial and ongoing breach of parenting orders.

Section 70NEA of the Family law Act 1975 (Cth) (Act) empowers the Court to make a range of orders against a party if:

  • there has been a contravention or breach of parenting orders, and
  • the respondent has not established a reasonable excuse, and
  • it is the first established contravention of the parenting order, or
  • although it is not the first established contravention, the court is satisfied that it is appropriate to apply this subdivision.

If the court is satisfied that the respondent has behaved in a manner that shows a serious disregard for his or her obligations under the primary order, the court can deal with such a contravention or breach of parenting orders under separate provisions of the Act which deal with more serious contraventions (*to be discussed in our next blog)

Section 70NEB of the Act sets out an array of possible orders the court can make in these circumstances namely, one or more of the following:

  • attendance at a post-separation parenting program
  • compensatory parenting order
  • adjournment of proceedings pending an application to vary a primary order
  • that the party who contravened the order enter into a bond
  • compensation of expenses
  • costs against the respondent, and
  • costs against the applicant.

Attendance at a post-separation parenting program

This can be made not only against the respondent, but also against another specified person, if:

  • the specified person brought the proceedings before the court in relation to the current breach of parenting orders or is otherwise a party to the proceedings, and
  • the court is satisfied that it is appropriate to direct the order to the specified person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child to whom the primary order relates.

Compensatory parenting order

Compensatory parenting orders were discussed in our previous blog post here 

Adjournment of proceedings pending application to vary primary order

In proceedings concerning breach of parenting orders, the court can always make a further parenting order varying a primary order. The court is empowered to adjourn the proceedings to allow either or both of the parties to the primary order to prepare the relevant evidence in respect of such proceedings.

In considering whether to adjourn the proceedings, the court must consider:

  • whether the primary order was made by consent
  • whether either or both of the parties to the proceedings that gave rise to the primary order were legally represented
  • the length of time between the making of the primary order and the circumstances that gave rise to the contravention, and
  • any other matters that the court deems relevant.

Order the person who contravened order to enter into a bond

A bond can be for a period of up to two years and may include conditions (without limitation) such as requiring the party to attend upon a family consultant; to attend family counselling  or to be of good behaviour. The Court may also require a party to attend anger management or drug/alcohol counselling as part of a bond, where appropriate.

Order for compensation of expenses

This order can be made in circumstances where, as a result of a contravention, the applicant spends less time with the child, and has incurred out-of-pocket expenses.

The expenses incurred must be reasonable and must be related to the contravention (eg an airline ticket purchased and wasted as a result of a child not being made available for time with the other party under a parenting order).

 Costs against respondent

The court is empowered to order the party who has contravened the order to pay some or all of the costs of the other party or parties.

Costs against applicant

This power allows the court to order that the person who brought the contravention proceedings pay some or all of the costs of the other party or parties. The court can exercise the power only if it makes no other orders in relation to the current contravention.

The court must consider ordering costs against the applicant. The justification for this provision is presumably that, where a court makes no order in relation to a breach of parenting orders,  notwithstanding that there has been a breach or contravention without reasonable excuse, the applicant may have been over-zealous or otherwise unreasonable in bringing the application, and it is appropriate for the court to consider making a costs order against the applicant.

If you need assistance concerning a contravention or breach of a parenting order, contact our Brisbane family lawyers and family lawyers Northside at LGM Family Law for advice particular to your circumstances and move forward with us to resolve your matter.