On 18 October 2024, the Federal Circuit and Family Court of Australia issued the Family Law Practice Direction: Defaulters’ List (Practice Direction) which will initially be piloted in the registry of the Sydney Courts.

It will ensure compliance with the relevant Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and case management orders and directions in family law or child support proceedings.  The Practice Direction is to be read together with the Family Law Act 1975 (Cth), Family Law Rules and the Central Practice Direction – Family Law Case Management. A similar Defaulters’ List case management mechanism is established and currently in use in the Central Practice Direction – Family Law Case Management.

Parties and lawyers’ duty

Parties to proceedings and their lawyers have a duty to resolve matters justly, efficiently and inexpensively as possible and must conduct the proceedings in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.[1] Lawyers must in the conduct of proceedings take account of the duty imposed on the party and assist them to comply with the duty.[2]  In assisting a party to fulfill the duty, lawyers may be required by the court to provide a party with an estimate of the duration and the likely costs of the proceedings.[3]  The Court will expect the cost of each step, the necessity of proceedings, and the avoidance of unjustified use of court resources to be always kept in mind. The Defaulters’ List is established to support this purpose by referring parties who fail to comply with the Court Registrar’s orders or directions, to a judge for a hearing in the Defaulters’ List.

The importance of parties and their lawyers complying with the duty is evident in the discretion the court has to consider if compliance with the duty has been adhered to when deciding costs.[4] A lawyer who fails to comply with the duty may be ordered by the court to bear costs personally[5] without recovering costs from the client.[6]  Defaulting parties and their lawyers should therefore be aware that if they fail to comply with the requirements of the rules and/or a case management order or direction the outcome could potentially be costly for both client and lawyer. Avoiding the Defaulters’ List will require effective cooperation and case management between lawyers and their clients.

Notable features of the Practice Direction to be aware of are as follows.

Default[7]

Subrule 10.26 (1) of the Family Law Rules provides how an applicant may be in default and includes if they fail to: comply with an order in the proceedings; file and serve a document under the Family Law Rules; produce a document required by Division 6.2.2.  Instances when a respondent may be in default under Subrule 10.26(2) include if they fail to: give an address for service before the time for the respondent to give an address has expired; file a response before the time for the respondent to file a response has expired; comply with an order of the court in the proceeding.

Extension of time[8]

Applications for extensions of time will need to be obtained prospectively by applying before default occurs. Adjournment applications of a court event that are due to anticipated non-compliance with an order or direction would need to be made 14 days prior to hearing in the case of a final hearing; or within 2 business days of a court event, in the case of any other court event.

Defaulter to show cause[9]

A complying party will not have the burden to impose a penalty, rather the burden will be on the defaulting party who will have the onus of applying for relief from the requirements of a rule or order against them. The Court may consider several factors when assessing a defaulter’s application, including: interests of the parties in the proceedings and the administration of justice by the courts more generally; whether the application for relief has been made promptly; whether the failure to comply was intentional; and whether there is a good explanation for the failure.

Court’s powers on finding default[10]

The Court may make any orders, give any directions and specify any consequences for non-compliance with the order it thinks just, against a defaulting party, including: order the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; set aside a step taken on an order made; order that a step in the proceeding be taken within the time limited in the order.

Notice of potential summary dismissal or undefended hearing[11]

Subrule 10.22(3) of the Family Law Rules provides that the notice advising parties that the matter has been allocated to the Defaulters’ List will include notice that the matter may be summarily dismissed, judgement may be given in the absence of party or may proceed as an undefended hearing.

Vocare Law is well equipped to assist our clients with family law matters and case management and has a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on family law. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Gail Olsson and Barry Klopper , Practice Leader – Family Law

Footnote

[1] S 96 (1), Family Law Act 1975 (Cth)

[2] Ibid, S 96 (2) (a) and (b)

[3] Ibid, S 96 (3) (a) and (b)

[4] Ibid, S 96 (4)

[5] Ibid, S 96 (5)

[6] Ibid, S 96(6)

[7] Clause 4.1 and 4.2, Federal Circuit and Family Court of Australia, Practice Direction/Family Law Practice Direction: Defaulters’ List, 18 October 2024

[8] Ibid, Clauses 4.4 and 4.5

[9] Ibid, Clauses 4.6 and 4.7

[10] Ibid, Clause 5

[11] Ibid, Clause 7

In August 2024, a new Bill to further amend the Family Law Act 1975 (Cth) was tabled in Federal Parliament (“the Bill”). While the previous amendments dealt primarily with Parenting matters, this Bill focuses mainly on Property disputes.

Property disputes

The major change in the Bill is the codification of the family law property settlement process into one clear section of the Family Law Act 1975 (Cth) (“the Act”).

It has been a well-accepted principle for many years that Family Law Property matters must be resolved by following a 5-step process:

• Determine whether it is just and equitable to change the parties’ existing interests;
• Ascertain what each party’s assets, liabilities, and future needs (“asset pool”) are;
• Consider each party’s contributions to the asset pool;
• Identify any future needs for each of the parties; and
• Assess whether the final distributions (i.e. “split”) are “just and equitable”.

While some of these steps were already included in the Act, they were spread across multiple sections. For example, the factors to consider when identifying future needs were outlined in the part of the Act relating to Spousal Maintenance, and were simply referenced in the property settlement part. Other steps, such as the step to ascertain the value of the asset pool, were not in the Act at all.

The Bill outlines all five steps as part of the existing section 79 of the Act, including moving the “future needs” factors into that section (rather than referring to a different part of the Act).

Pets

For a long time, family lawyers and self-represented parties alike have clashed over what the law required in relation to pet ownership after a couple separates. The case law is inconsistent, and there was no guidance in legislation.

The Bill includes specific provision for how pets are to be dealt with under the Act. In particular, it provides that pets can only be owned by one party – parties cannot share ownership of pets.

The Bill goes on to specify the considerations the Court will make when deciding which party will retain the pet:

1. the circumstances in which the pet was acquired;
2. who has ownership or possession of the pet;
3. the extent to which each party cared and paid for the pet
4. any family violence to which one party has subjected or exposed the other party;
5. any history of actual or threatened cruelty or abuse by a party towards the pet;
6. any attachment by a party, or a child of the marriage, to the pet;
7. the demonstrated ability of each party to care for and maintain the pet in the future, without support or involvement from the other party;
8. any other fact or circumstance.

Domestic and Family Violence

While there is case law that supports the consideration of domestic and family violence when determining a “just and equitable” property settlement,[1] this was rarely applied in practice, as parties and practitioners alike struggled to obtain clarity over how the case law applied to other circumstances.

The Bill includes specific provision to account for “the effect of any family violence” on a party’s contributions or future needs. This does not mean that the mere existence of domestic and family violence in a relationship will allow the victim/survivor to receive a higher property settlement – it simply means that where the domestic and family violence has impacted the victim/survivor’s contributions or future needs, that can be taken into account.

For example, if person A has been unable to complete or maintain a qualification due to the control or violence of their partner, person A may receive an adjustment of the property settlement in their favour to account for their lack of qualifications and lower income earning capacity. Alternatively, if person A earnt significantly less than their partner due to the control or violence of their partner (e.g. their partner was their employer, or their partner restricted the hours they could go to work), their financial contribution may be given more weight to account for the extenuating circumstances they were made in.

Children’s Contact Centres

Another major proposed change in the Bill is to introduce a regulatory framework for Children’s Contact Services. Currently, these essential services have no significant oversight or regulatory requirements.

The proposed changes to the Family Law Act introduce the ability for the Federal Government to generate and regulate accreditation rules and processes for Children’s Contact Centres, and to enforce penalties for services that are not accredited.

The changes also specify how confidential information is to be handled by the Contact Centre, and what evidence from a centre is admissible in Court.

Interestingly, there has recently been a review into Family Relationships Services, including Contact Centres, which was completed by the Australian Institute of Family Studies at the request of the Attorney-General. Some of the findings of this review included the need to simplify access to family relationship services, including Children’s Contact Centres, to better and more efficiently assist struggling families. You can read more about this report here: https://www.ag.gov.au/families-and-marriage/publications/support-separating-families-review-family-relationships-services-program

Vocare Law is well equipped to assist family law clients with a wealth of collective knowledge and over decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring you are well advised as to the amendments relating to property coming up in the Family Law Act. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Tabitha Gulley.

The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.

Footnote

[1] Kennon v Kennon [1997] FamCA 27

Amendments to the Family Law Act 1975 (Cth) which took effect on 6 May 2024 significantly change the way the family law matters will be decided. While previously the law focused on the rights of the child and the responsibilities of the parents, the amendments now bring into sharp relief that the focus should be on the best interests of the child, including ensuring their safety.

Changes to the Family Law Act

Parental responsibility means all the duties, powers, responsibilities and authority which parents have in relation to children. Unless there is a court order allocating parental responsibility to a particular parent, each parent can make decisions relating to the long-term care, welfare, and development of a child, for example, enrolling them in a school. Where there is no court order, parents can exercise this decision-making power either in agreement with the other parent or on their own. This understanding of parental responsibility is not changing under the amendments.

However, a significant change to the law is the removal of the presumption that it will be in a child’s best interests for parents to be allocated equal joint decision-making responsibility for decisions about long-term issues, such as schooling, health, and education. Further, the requirement that a court must consider an ‘equal time’ arrangement has been removed.

What the changes may mean for schools

• There may be more variety in the types of parenting orders that are made, and schools should not assume that parents have equal joint decision-making power, even if the child is living in an “equal time” arrangement.

• There may be more orders that allocate decision-making responsibility to only one parent for some matters (such as schooling) and to both parents for other matters (such as religion and health).

• Where there are no court orders or there is an order for equal decision-making for all matters, schools can continue to rely on one parent’s communicated decision as if it is a joint decision of the parents.

• However, if there is an order for joint decision-making and parents communicate conflicting instructions, there is no decision the school can make – they should put the responsibility back on the parents to resolve the dispute between themselves.

In the context of a school, some examples of major-long term issues relating to the care, welfare, and development of a child could be:

•  Enrolment of a student

• Termination of an enrolment

• Providing counselling services to a student

• Senior subject selection

• Long camps

• Inherently dangerous activities like horse-riding and contact sports

Whereas some examples which may not require the consent of both parents are:

• Participation in a workshop or series of workshops designed to improve a student’s social interactions

• Sporting events

• Most camps

What about Domestic and Family Violence?

In the wake of recent public outcry, there are significant changes on their way in many states in relation to their domestic and family violence laws.

In Queensland, for example, laws to try to address coercive control were passed on 6 March 2024 and will come into force in 2025 (click here for more information).

It is very important for schools to be aware of any Domestic Violence protection orders that may exist between parents, to ensure that they do not accidentally enable a breach or otherwise expose children and other adults to domestic and family violence.

It is important to remember, however, that it is not the responsibility of a school to enforce the requirements of a protection order or otherwise protect a victim-survivor from abuse.

Schools should have specific policies for dealing with protection orders and violent incidents on-campus to ensure that they are meeting their obligations to protect students and staff.

Next Steps

We regularly provide advice to schools about how to interpret family court orders, how they interact with domestic and family violence orders, and the school’s obligations generally when dealing with separated families. We can also assist to prepare formal family law and domestic and family violence policies.

If you require advice in this area, or would like one of our family lawyers to give a presentation to your school on any of the matters raised above, please contact us.

This article was written by Tabitha Gulley.