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Publication of Court Proceedings

Publication of Court Proceedings

PUBLICATION OF COURT PROCEEDINGS

Any matters discussed during family law proceedings, or documents created for the purposes of proceedings in either the Family Court of Australia or Federal Circuit Court of Australia are not made available for consumption in the public domain and should not be used for any other purpose, which is not related to the family law proceedings.

To achieve that objective, parties in family law proceedings provide an implied undertaking that any information they discover during the family law proceedings will only be utilised in those family law proceedings and not for any other purpose.

Additionally, the Family Act 1975 imposes a restriction on all persons publishing in a newspaper, radio, or television broadcast, or otherwise “…disseminating to the public, or a section of the public” by any means, any part of any proceedings, which may identify a party to the proceedings, a person related to or associated with the proceedings, or a witness in the proceedings. Trusted family lawyers in Qld can help you navigate these restrictions and protect your privacy during family law proceedings. Any persons who breaches this restriction commits an indictable offence, which is punishable by up to one (1) year imprisonment.

The restriction on newspaper, radio, or television is self-explanatory, so will not be explored any further here.  But what about, otherwise disseminating to the public or a section of the public any part of the proceedings which may identify parties to the proceedings, or relatives and associates of parties to the proceedings?

Is a conversation with a Psychologist, Doctor, Counsellor, or trusted friend disseminating to the public, or a section of the public?  The short answer is no, but if that conversation takes place over one of the publicly available social media platforms, the answer will be yes.

The Courts have examined this issue at length and the phrase “disseminating to the public, or a section of the public” should be read as widespread communication, with the intention of reaching a wide audience.  Widespread communication will no doubt include, statements on Twitter, Instagram, and Facebook, which we will get to later.

There may be instances where releasing information or documents created specifically for the purposes of family law proceedings serves the interests of justice.  For example, if you are defending a criminal, or libellous allegation and a party, or witness in family law proceedings has made prior inconsistent statements in the Family Court, which bear direct relevance to the proceedings of another Court, then it is highly likely that, on application, the Family and Federal Circuit Courts will authorise the release of that information and relieve a party of their “implied undertaking of silence,” for the purposes of mounting the best available prosecution, or defence available to them.  The “credit” of a witness in Court proceedings is an issue of the utmost importance in most litigation and where witnesses have made prior inconsistent statements, they should expect to be cross-examined about such statements.

There are other instances where statements on websites, Twitter, Instagram, and Facebook are referred to the Court for further action and in one of these examples, the names of witnesses, children, and parties in family law proceedings found their way on to a website. Trusted family lawyers in Qld can provide guidance on dealing with such situations and taking legal action to protect your privacy.  The mother filed an application with the Court seeking an injunction against the website and suspected that the father was involved in the creation of the website, but there was insufficient proof to support these allegations.  The Judge issued an injunction against those behind the website restraining them from continuing to have the material identifying parties and witnesses, accessible on their website.

Judges in the family law jurisdiction do not have any authority to punish persons who breach those provisions – they are limited to referring alleged breaches to the Australian Federal Police for further investigation.

If the AFP concludes there is enough evidence to prosecute a person, they need to seek the Director of Public Prosecution’s written consent before they commence proceedings.

If you have any questions about whether you have publicised or identified someone involved in family law proceedings, please contact one of our trusted family lawyers in Qld to discuss your situation.

What is a Family Report?

What is a Family Report?

Family Consultants are often appointed by the Court in children’s disputes to interview and observe relevant parties; prepare reports about their interviews and observations; and make recommendations about the most suitable future co-parenting regime. They provide an independent voice, helping Judges make decisions about arrangements for the child/ren. In the process, they may also help the parties reach an agreement.

In preparing the report, the family consultant considers the family’s circumstances, explores issues relevant to the case, and recommends arrangements that will best meet the child/ren’s future care, welfare, and developmental needs. The child’s best interests are always of paramount importance.

The report is confidential and cannot be shown to anyone other than parties to the court proceedings and their legal representatives. It is an offense, to publish or disseminate to the public, or a section of the public, any part of proceedings under the Act that identifies a party, a witness, or certain other persons.

What is a family consultant?

Family consultants are qualified social workers or psychologists, with skill and experience in working with children and families. They are appointed by the Court to help parents and Judges achieve the best outcomes for the children. Family consultants are recognized as experts in relation to children’s matters.

How much does a Family Report cost?

A Family Report can occasionally be ordered and paid for by the Court, where the parties are under financial hardship, so there is no cost to either party. Alternatively, the Court may order that the parties equally pay for the costs of the report, which can cost between $4,000-$5,000.

What happens after a Family Report is ordered?

If we represent you, we at The Legal House will contact you advising you of your appointment times and help prepare you for the interviews. Interviews may be conducted in the Child Dispute Services Section of the Court, or at the Family Consultant’s office.

What information will the family consultant need to prepare the Family Report?

The family consultant may contact teachers, doctors, or other relevant professionals for more information about your child/ren. The Court may also direct that the family consultant has access to material which has been subpoenaed.

Generally, the family consultant will gather information about:

  • The issues in dispute
  • Past and present parenting arrangements
  • The parenting capacity of each party
  • Your child/ren’s relationships with significant people
  • Your child/ren’s wishes and views, and
  • Any risks to the child/ren.

Is the information provided to the family consultant confidential?

The information provided to the family consultant is confidential to the court proceedings, but all information gathered by the family consultant is admissible in Court. The family consultant is required to include relevant information in the report and may also be required to give evidence in Court. So, others not involved in the Court proceedings will not know about the contents of the report, but all those involved in the proceedings will.

What if the recommendations of Family Report are unfavourable to me?

The Family Report is only one source of evidence that the Court considers in making its decision, but their views are very persuasive. The Court is not bound by any recommendations made in the report, and you can challenge the contents of the Family Report by cross-examining the report writer at a trial, although very few cases proceed to trial.

If you require professional legal assistance in family law matters, contact The Legal House for personalised support and guidance. Our experienced team of family lawyers in Qld is ready to help you navigate the complexities of your case.

What To Expect At Your First Family Lawyer Consultation

What To Expect At Your First Family Lawyer Consultation

What should you expect from your first meeting?

 

Meeting with a Solicitor can seem overwhelming, but if you have started to think about booking an appointment, it is already necessary.

At The Legal House, our family law team understands the emotions associated with relationship breakdowns; working out post-separation parenting arrangements; and dividing matrimonial assets.

Here are a few points to remember if you are about to have a consultation with a family lawyer:

  • Your matter is confidential (even if you only have one consultation);
  • You will be advised what to bring to your appointment in advance, having as much of this information prepared will help us give you the best advice;
  • We understand you may be anxious and we are here to help – we do so by always acting in your best interests;
  • You will be better informed if you provide your lawyer with your priorities at the start of the appointment – e.g. you may not have children with your estranged partner and might be most worried about potentially relinquishing any claim you have to the matrimonial home, if you move out;
  • It is important to be open and honest in this discussion, as the accuracy of our advice depends on the accuracy of the information;
  • If you choose to move forward, we will map out the next steps;
  • We will give you our best estimate on costs;
  • We encourage you to ask questions throughout the appointment, it may help to have some prepared in advance, and to take notes during the meeting.

This article is not legal advice and should not be relied upon as it does not answer questions specific to your situation. 

If you would like to make a booking with one of our family law team, please contact our office for a no-obligation free consultation.

Publication of Court Proceedings

Negotiating Settlements With Property & Children

Many couples can successfully negotiate the division of their assets and care of their children without legal intervention, but those who can’t, should read this article.

Property Settlements

The Courts generally adopt a four step approach to dividing matrimonial assets:-

Identifying and Valuing Matrimonial Assets, Liabilities and financial resources (a financial resource could be a income producing business, distributions from a trust fund etc.).

If you cannot agree on the value of the assets, liabilities and financial resources in the “asset pool” then an expert will be appointed to value the disputed asset.  The expert’s costs will usually be paid equally by both parties, but a party who holds a stronger financial position may be ordered to pay at first instance and be reimbursed at settlement.  In certain circumstances assets can be excluded from the pool, e.g. you owned an asset before you met your spouse; your spouse did not contribute to it during the relationship; and it was never mixed with your “matrimonial assets”, that asset may be excluded.

Identifying and Assessing the contributions of the parties.

Contributions include non financial contributions as well as financial contributions. Financial contributions can be mortgage repayments, or the purchase of raw materials to maintain or improve the matrimonial home. Non financial contribution can be the non-paid labour of one of the parties in maintaining or improving the matrimonial home. Non financial contributions also incorporate ordinary domestic chores such as cleaning, vacuuming, washing, ironing etc.

What future circumstances might influence the Court in deciding how to divide the matrimonial assets?

If a party is in a financially disadvantaged position at the time of separation, then a financial adjustment will be made in their favour to counteract that imbalance. For example, a party who earns substantially less than the other party, will receive a financial adjustment in their favour, which effectively gives a party more of the asset pool than they would otherwise have received, if not for that financial disparity.  A party who is significantly older than the other party will likely receive a financial adjustment in their favour, as they closer to retirement age and have less opportunity to earn an income.  There are many other examples of how adjustments might be made in one party’s favour because they are find themselves in a position of disadvantage.

In all the circumstances is making an Order just and equitable?

Where the Court has evidence that the parties have lived separate financial lives, the Court might choose not make any Orders. This is more common in short relationships where the parties are yet to “pool” their assets, but holds true for longer relationships where assets have been “quarantined”. Where assets are held jointly, or both parties make contributions to an asset that is held by one party, the Court will likely determine that it is just and equitable to make an Order altering the property interests of the parties.

Children

A legal presumption exists that both parents have equal and shared parental responsibility for their children.  Equal and shared parental responsibility means that both parents should equally make decisions about major long-term issues, such as schooling, religion and medical treatment jointly.  Equal and shared parental responsibility does not mean that the child/children should spend equal time with each parent.  The presumption does not apply in situations where one of the parties has perpetrated family violence against the other party, or on the children of the relationship.

A crucial concept in all matters relating to children is that of “the children’s best interests”.  This phrase incorporates several “legal considerations”, but the central theme addressing each one of these considerations is, “What is in the child or children’s best interests?”  It is in the children’s best interests that they be protected from harm and if one parent is the cause of that, then the children should be protected from that.  This can be achieved by implementing supervised visits until the offending parent’s behaviour is remedied.  There is no succinct step by step approach when it comes to children’s matters and the Court carefully examines the circumstances of each case to ensure the children’s best interests are always promoted.

At The Legal House, we have several legal representatives who are able to assist in resolving your family law matters and where you cannot agree on how to divide the matrimonial assets, or have concerns about your children’s well being, you should always seek legal advice.

Publication of Court Proceedings

The New Domestic and Family Violence Protection Act 2012

The connection between Domestic Violence and asset distribution

The concept of “domestic violence” is not new, however the formulation of a system of rules governing how you can behave in a domestic relationship is. It has never been OK to be physically or emotionally abused by your spouse. However, historically legislators have resisted intervening in domestic abuse situations as many “voters” regarded it as an unwelcomed intrusion into their personal life.

Historically, in order to get police protection from an abusive spouse, the victim would be required to make a complaint and if the matter proceeded as far as the Courts, give evidence against their abuser. The difficulty with that procedure was that many victims abandoned their allegations when their spouse professed their undying love for them, or even worse threatened them with further violence acts if their allegations were not withdrawn. The introduction of the Domestic and Family Violence Protection Act (DFVPA) in 1989 closed that legal loophole. The Act was amended in 2012 and now more accurately reflects contemporary understandings of domestic and family violence.

The new Act catches a greater range of “relevant relationships”, including same sex relationships and even “one night stands” where the “one night stand” produces a child. The Act expands the definition of Domestic Violence and increases the safety, protection and wellbeing of people who fear or experience domestic violence.

So, what is domestic violence? Domestic violence can be abuse that is physical, sexual, emotional or economical. It also includes coercive, threatening, or controlling behaviour, or any other type of behaviour that causes a person to fear for their safety or well being.

Domestic violence only occurs within the context of a relevant relationship. A relevant relationship includes spousal relationships, family relationships (a relative), or an informal care relationship. The first two are self explanatory, but an informal care relationship exists between two persons, where one person depends on the other for help in an activity of daily living.

In non life threatening situations an “aggrieved person” (the victim) can apply for a protection order under the Act by attending the nearest Court and completing an application, detailing the allegations of domestic violence. In more serious cases where police are called to a house after a report of domestic violence, the Act requires the police to investigate the incident and provides them with the authority to detain a “respondent” (the perpetrator) for up to eight (8) hours while they complete an application for a protection order.

Where an application for protection under the Act has been granted, it affords the following protection to aggrieved persons:-

  • orders the respondents to be of good behaviour toward you;
  • prevents further acts of domestic violence to you or your associates (family, friends etc.) by making a breach of the order a criminal offence with more severe punishment;
  • prevents a respondent from attending certain premises, or places;
  • provides the police and/or the Court with the power to evict a respondent from their home temporarily or until the Court proceedings are finalised; and
  • any other orders as the Court see fit with the safety, protection and wellbeing of victims of Domestic Violence of paramount importance.

If you are unsure whether or not you are a victim of domestic violence you should contact our office immediately or if your situation is life threatening call 000.

The article is intended to offer simple explanations to frequently asked questions about Domestic Violence and what practical impact, if any, the new Act has on domestic relationships. It is not legal advice and should not be relied upon as same as it does not answer questions specific to your situation.

Publication of Court Proceedings

DV and Property Settlements

Gold Coast family lawyers, practicing in family law are increasingly providing consultations on domestic violence matters, more than ever before, as the new Domestic and Family Violence Protection Act 2012 catches a greater range of relationships, including same sex relationships and even “one night stands”, where the “one night stand” produces a child. The Act expands the definition of Domestic Violence and increases the safety, protection and wellbeing of people who fear or experience domestic violence.

So, what is domestic violence? Domestic violence can be abuse that is physical, sexual, emotional or economical. It also includes coercive, threatening, or controlling behaviour, or any other type of behaviour that causes a person to fear for their safety or well-being.

Domestic violence only occurs within the context of a relevant relationship. A relevant relationship includes spousal relationships, family relationships (a relative), or an informal care relationship. The first two are self-explanatory, but an informal care relationship exists between two persons, where one person depends on the other for help in an activity of daily living.

In situations that aren’t life threatening an “aggrieved person” (the victim) can apply for a protection order under the Act by attending the nearest Court and completing an application, detailing the allegations of domestic violence. In more serious cases where police are called to a house after a report of domestic violence, the Act requires the police to investigate the incident and provides them with the authority to detain a “respondent” (the perpetrator) for up to eight (8) hours while they complete an application for a protection order.

Where an application for protection under the Act has been granted, it can afford the following protection to aggrieved persons:-

  • orders the respondents to be of good behaviour toward you;
  • prevents further acts of domestic violence to you or your associates (family, friends etc.) by making a breach of the order a criminal offence with more severe punishment;
  • prevents a respondent from attending certain premises, or places;
  • provides the police and/or the Court with the power to evict a respondent from their home temporarily or until the Court proceedings are finalised; and
  • any other orders as the Court see fit with the safety, protection and wellbeing of victims of Domestic Violence of paramount importance.

Generally, domestic violence is not connected to the inevitable division of assets when relationships break down, as the Courts generally adopt a “no fault” policy.  It ordinarily doesn’t matter why you have broken up, it just matters that you have.

As you may have already read in our article about property settlements , the Courts consider the contributions each party makes to the preservation, or acquisition of relationship assets. There are occasions where a party’s conduct in a relationship makes the other party’s contributions more arduous than they ought to have been e.g. one party assaults another party regularly, causing them to have time off work; a party cleaning up and fixing broken property damaged in a violent outburst by the other party; or a party protecting the children from the violent outbursts, by removing them from the violent outburst. Your contributions are not made more arduous if your partner is unfaithful.

If you are unsure whether you are a victim of domestic violence you should contact one of our family law team immediately or if your situation is life threatening call 000.

The article is written by The Legal House, Gold Coast family lawyers. This paper is intended to offer simple explanations to frequently asked questions about Domestic Violence and what practical impact, if any, domestic violence has on the division of matrimonial assets. It is not legal advice and should not be relied upon as same as it does not answer questions specific to your situation.