Welcome – Federal Circuit and Family Court of Australia

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A welcome ceremony will be held for His Honour Judge Jonathan Forbes and Her Honour Judge Catherine Symons on Monday, 11 October 2021 at 11:30am

The ceremony will be held electronically, via Microsoft Teams, and guests will not be permitted to attend in person. A link to the ceremony will be added in this notice once confirmed.

Guidelines issued by Federal Circuit and Family Court of Australia regarding operation of Evatt List

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The Federal Circuit and Family Court of Australia (FCFCOA) has recently issued guidelines in respect of the operation of the Evatt List, including in relation to the involvement of an Independent Children’s Lawyer (ICL).

The Evatt List is a specialised case management system established to resolve high risk matters. The aim of the Evatt List is to minimise the risk of trauma and harm by ensuring high risk families are provided with appropriate resources and support and by managing their matters as efficiently and effectively as possible.

Types of matters included in the Evatt List

The Evatt List is currently being trialled in three registries of the FCFCOA across Australia, including Brisbane. Parties are eligible to be included in the Evatt List if their matter relates to parenting orders only. This does not include the following types of matters:

cases where parenting and property orders are sought together;

child support and child maintenance cases;

contravention applications.

At least one party must have completed a Family DOORS Triage Risk screening and returned a high risk screening classification (as opposed to low or moderate risk). This is an online risk screening questionnaire which is completed upon the filing of a parenting application or response.

Answers to the questionnaire cannot be used as evidence in proceedings and cannot be seen by the other party.

Management of cases in Evatt list – Preliminary chambers listings and first Court event

Within five business days of a person screening as high risk, a first chambers listing will occur before an Evatt List Judicial Registrar. No appearances are required. The purpose of the listing is to:

confirm the matter is suitable for the Evatt List;

consider any section 60I exemption (to participate in family dispute resolution) or short notice application;

refer the matter to the Magellan Registrar if appropriate;

make directions for the filing of response material;

consider orders for an ICL (it is anticipated that an ICL will be immediately appointed);

consider what directions might be needed to gather information such as subpoenas;

consider orders for a section 62G family report to be undertaken by Court Children’s Service, and

list the matter for the first Court event.

There may be another chambers hearing before the Evatt List Judicial Registrar to check compliance with the directions made, make orders for the inspection of documents, or to follow up on the information gathering process.

The aim is for there to be as much independent evidence before the Court by the time the matter is listed for the first Court event.

After the preliminary chambers listings, the first Court event will be held at which time the Court will:

conduct an interim hearing, if necessary;

undertake case management to determine the future conduct of the case;

make trial directions, providing there are no outstanding interim applications.

It is very unlikely that the first Court event will be adjourned.

Management of cases in Evatt list – Trial directions, compliance check and trial

The intention of matters in the Evatt List is that trial directions will be made within three to six months of their initial screening. A Trial Plan form is to be completed by each party prior to the listing, outlining details regarding potential witnesses, the estimated length of trial, the issues in dispute, any family violence orders or criminal proceedings and whether a party is unrepresented or may become unrepresented.

If the trial directions have been complied with, and the experts report has been released, the parties are to complete a compliance certification no later than 48 hours prior to the compliance check listing. If all matters have been complied with and there are no changes to the estimated hearing days, the compliance check may be vacated and the matter immediately referred for trial dates.

If the compliance check is still required, the Evatt Judicial Registrar will:

confirm there is compliance with the trial directions;

allow one adjournment only for non-compliance (if there is no compliance on the second compliance check, the matter will be listed for an undefended hearing or further case management directions);

consider any settlement or dispute resolution options;

consider any costs orders for non-compliance; and

list the matter for trial.

The intention is that a final trial will occur as quickly as possible, preferably, within nine to 12 months.

Independent Children’s Lawyer in Evatt List

The FCFCOA has also released a number of guidelines in relation to the involvement of an ICL in matters included in the Evatt List. In particular, the ICL should consider:

Family Court restrains husband from selling family properties

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A family court judge recently made an interim order restraining a husband from selling any of his properties.

Acting for the wife, Opal Legal’s Liverpool family lawyers had lodged an application in the Federal Circuit and Family Court of Australia seeking that the husband be restrained from selling any of his real estate.

The wife had become aware that the husband was intending to sell two of his five properties.

The husband, represented by senior counsel, sought to be allowed to sell those properties.

Strongly arguing for the husband to be restrained from selling any of the properties, our client’s family law barrister submitted that:

The conduct of the husband, including him not making full and frank disclosure, militated for the granting of an injunction.

On the other hand, there could be no criticism of the wife’s conduct.

There was no irreparable prejudice to the husband.

If the orders sought were not made, the wife’s expected interest in the matrimonial pool could well be dissipated by the husband or disappear altogether.

The balance of convenience favoured the wife.

After considering affidavits of the parties, extensive documentary evidence, documents produced under subpoena and submissions by the parties’ family lawyers, the family court judge decided to restrain the husband from selling or dealing in any way with any of his real estate.

This injunction can only be lifted by a further order of the court or the written agreement of the parties.

What is an injunction?

An injunction is an order by a court compelling a person to do a specific act or, more commonly, to not do a specific act.

Can a family court grant an injunction in a property dispute?

Under section 114 (1) of the Family Law Act 1975, a family court has broad powers to make any order or grant such injunction, as it considers proper, with respect to circumstances arising out of a marital relationship.

The powers of the court extend to an injunction:

for the personal protection of a party to the marriage;

restraining a party to the marriage from:

entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides; or

entering or remaining in a specified area of those premises where the other party lives.

restraining a party from entering the place of work of the other party;

for the protection of the marital relationship;

in relation to the property of a party to the marriage; or

relating to the use or occupancy of the matrimonial home.

Section 114(3) gives the court a separate power to grant an injunction “in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate”.

Can a family court grant an injunction in a parenting case?

Under section 68B(1) of the Family Law Act, a court has wide-ranging powers to grant an injunction in relation to a child. The court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction:

for the personal protection of the child;

for the personal protection of a parent of the child or a person with whom the child is to live, spend time or communicate under a parenting order;

for the personal protection of a person who has parental responsibility for the child;

restraining a person from entering or remaining in a place of residence, employment or education of the child; or in a specified area within it;

restraining a person from entering or remaining in a place of residence, employment or education of a parent of the child or a person with whom the child is to live, spend time or communicate under a parenting order; or in a specified area within it;

restraining a person from entering or remaining in a place of residence, employment or education of a person who has parental responsibility for the child;

Section 68B(2) gives a family court a separate power to grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate – see s 68B(3).

What factors does a Family Court consider when deciding whether to grant an injunction?

In Tsiang & Wu and Ors [2019] FamCAFC128, the Full Court of the Family Court of Australia summarised the legal principles a family court considers when deciding whether or not to grant an injunction: