Et Cetera 2023 Edition 2-Advocare

ET CETERA ISSUE 2 I SEPTEMBER 2023

ADVOCARE LATIN ; TO PROVIDE A VOICE

FAMILY | CRIMINAL

| INDUSTRY

DEAKIN LAW STUDENTS' SOCIETY

EDITION 2

SEPTEMBER 2023

ET CETERA

INTRODUCTION Et Cetera is the flagship publication of the Deakin Law Students' Society (DLSS). It seeks to reflect the Deakin Law School zeitgeist of the time, and resonates with the interests of Deakin Law students. It aims to provoke thoughtful discussion about issues relevant to our readers as students, future legal professionals and citizens of the world.

In this special edition of Et Cetera, dive deep into the nuanced world of criminal and family law, learning about the myriad of places careers in these industries will take you.

EDITORIAL Editor in Chief Editor Editor Editor Design Design

Zoe Ellis Jordan Cook Chrissa Karouzakis Chamodhi Polwatta Jordan Cook Zoe Ellis

| | | | | |

CONTRIBUTORS Maryam Badvi Menoz Bowler Juliana Dleikan Jade Briani Hopper Annette Lakey Vinh Nguyen Dan Nicholson Sophie Parsons Bonnie Phillips Keturah Sageman Alfina Samaras

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ABOUT THE DEAKIN LAW STUDENTS' SOCIETY The Deakin Law Students’ Society (DLSS) is one of Deakin University’s oldest and largest student societies. We are a student-run organisation which aims to assist Deakin law students in making the most of their time at law school.

Across our portfolios, we work to provide a range of events and services to assist you at every stage of your degree. Whether you want to improve your grades or make new friends, the DLSS is your one-stop shop for all things law at Deakin.

For more information you can find the DLSS on Instagram, Facebook, TikTok, LinkedIn or via our website.

DISCLAIMER This publication is provided free of charge by the Deakin Law Students’ Society. Any opinions expressed in this publication are not to be held as those of the DLSS, Deakin Law School or Deakin University. The DLSS, Deakin Law School and Deakin University do not necessarily endorse these opinions; they belong solely to the authors.

COPYRIGHT This publication is subject to copyright. Except where permitted under the Copyright Act, no part of this publication may, in any form or by any means (electronic or otherwise) be reproduced or stored in a retrieval system or transmitted by any process, without prior written consent from the DLSS.

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DIRECTORS' FOREWORDS ZOE ELLIS 2023 DIRECTOR OF COMMUNICATIONS

'What area of law do you want to go into?’

Family and Criminal Law edition of Et Cetera. It is the culmination of months of work from many people.

It’s the university equivalent of primary school’s ‘What do you want to be when you grow up?’ Inevitably, so many law school conversations end up here. For many of us, the answer is that we wish to go into industry careers, and there are two practice areas that seem to appear most often —Family Law and Criminal Law.

To my officers—thank you for your time and dedication. This publication is a credit to your hard work. From aiding in the design and creation of the cover and layout, to sourcing the articles that make up the heart of this edition.

Without your tireless work this magazine would just be a shell and you have created something to be incredibly proud of.

Most editions of Et Cetera reflect this interest in industry careers; there is always an article or two detailing what such a career may look like, and how to get there. In recent years, Et Cetera has offered readers the opportunity to scratch the surface of a wide range of topics. This time, however, we wanted to delve deep into those specific practice areas that draw so many in.

To the contributors who have so generously written for us; Et Cetera relies on volunteers like you and the DLSS is always grateful.

This edition is also particularly special as the magazine returns to print. This is possible due to the support of the Industry Careers Portfolio. In creating an event and magazine centring these practice areas, we hope attendees and readers have a wholistic, engaging and educational experience.

The launch of Et Cetera at the Family and Criminal Law panel is testament to wonderful results of professional collaboration, and I look forwards to attending what I know will be an exceptional event.

The title ‘Advocare’ perfectly encapsulates what I believe appeals to many—the idea of a career where they are making a tangible difference in people’s lives. When I have spoken to lawyers in these areas, it is consistently what they say is most fulfilling about their work, a sentiment reflected in many of the articles in this edition. These areas of law truly do ‘give a voice’. They allow those who do not otherwise have the legal knowledge to help themselves be heard and helped in challenging moments.

I hope you find this edition thought provoking and compelling. I believe that reading is one of the greatest ways we can engage in personal development, and I hope that after reading this edition, you will too.

I am very proud to present this special

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BAILIEJEAN HOHNBERG 2023 DIRECTOR OF INDUSTRY CAREERS

Welcome to our Family and Criminal Law publication and panel! I am so excited for this event and for everyone to be able to read Et Cetera.

Alongside our panel, Et Cetera and the 'Before the Court' podcast mini-series provide students with access to a range of insightful conversations with criminal and family legal practitioners.

I am incredibly proud to lead the Industry team, and to be partnering with the Communications team, in the delivery of these initiatives.

All year, I have been eagerly waiting for our Family and Criminal Law Panel and the launch of Et Cetera Issue Two. Both of these events are so special to the Industry Careers team as they are the culmination of all of our work this year. We are so proud to be working with the Communications team to present this publication and event, and hope that you find both to be insightful and thought provoking.

I hope that if you take one thing away from the panel, it is that the work of criminal and family lawyers is so varied, making them exciting practice areas to consider. So please, enjoy the panel and enjoy taking your time to peruse the pages of Et Cetera.

Whilst there are many practice areas that Industry Careers represents, family and criminal law have always proven the two areas students seek the most opportunities to engage with.

The Industry Careers portfolio is proud to present a panel focused specifically on these two practice areas and to provide students with the opportunity to network with some of the most highly regarded legal professionals from these practice areas.

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OFFICER'S FOREWORD JORDAN COOK, CHAMODHI POLWATTA, CHRISSA KAROUZAKIS, 2023 COMMUNICATIONS OFFICERS

We welcome you to this special Family and Criminal Law edition of Et Cetera.

our idea of success in the law.

Family and criminal law are both emotionally charged and taxing areas for a lawyer to practise in. They can be emotional and demanding of a strong presence, and it can be difficult to foster a work/life balance. However, one theme we have found to be omnipresent in this edition is the reward and satisfaction that these lawyers receive from their work. They have each taken unique pathways to reach their current positions, and have all found success and happiness in their respective fields and jobs. This edition’s contributors have redefined our views on success in the law and allowed us to understand that the path to success in not always singular.

Creating ‘Et Cetera’ has allowed us to combine our passions — the law, storytelling, and legal investigation all have a place in the work that has gone into this edition. It has been an exciting journey that immersed us into the world of criminal and family law and ignited a new spark of interest in these areas. As law students we are submerged in an endless realm of legal possibilities, each offering unique avenues for practice and specialisation. All the contributors who wrote in this edition of ‘Et Cetera’ helped enhance our knowledge of the legal world and broaden our view of what we thought criminal and family law.

This edition truly is a worthwhile read, especially for readers seeking some clarity as to whether to pursue law, or for those who are unsure of which pathway to take to achieve success in the legal field.

The articles are intriguing and may even spark an interest in an area of law which had not been previously considered. In our experience, each article taught us something or gave us a new outlook on certain matters. We hope it does the same for you.

Each article challenged the

Working on this edition has truly opened our eyes to the possibility of working in the fields of criminal and family law. Early on in our degrees, we can have quite a narrow-minded perspective on what it means to be a lawyer. We are taught to believe that the path is singular and there are few areas to work in if you wish to be successful. However, being afforded the opportunity to source articles from lawyers who have taken every path imaginable has pushed us to redefine

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way we thought of each area of law, and some articles shifted our perspective on certain matters, urging us to see the bigger picture.

Creating this edition of Et Cetera has truly been an educational and insightful experience that has provided us with a better understanding of the different avenues available in the legal field.

We are proud of the Communications Portfolio this year, and with this being our first edition being brought to life in print for a long time, we cannot wait for everyone to enjoy reading it as much as we enjoyed putting it together. From meticulously sourcing contributors, to refining articles and orchestrating the magazine’s editing process, the creation of the magazine has been an exceptionally rewarding process. We would like to thank all our contributors without whom this edition would not be possible.

We hope these stories illuminate the captivating essence of criminal and family law for you as they did for us, and open new pathways for success in the legal field.

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C O N T E N T S

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Making the Change to Family Law-Bonnie Phillips

Supporting women and victims of family violence remains an area of the law that is still very important to me and arises in many of the cases that I continue to handle to this day.

Championing Alternate Methods of Dispute Resolution-Annette Lakey

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Woodcock — A Family Law 'Test Case'?-Vinh Nguyen

A recent interlocutory decision in the Federal Circuit and Family Court... raises the possibility of a radical change in the way discretionary trusts are treated in Australian family law.

Who Are YOU Fighting For?-Menoz Bowler

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Access to Justice in Criminal Law-Dan Nicholson

What to Expect as a Family Lawyer-Maryam Naz Badvi

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Embracing the Old and the New—The Practice of Family Law in Australia-Alfina Samaras

DLSS Satire: Damages Incurred

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Maths and Psychology—The Art of Family Law-Jade Briani Hopper

To Go or Not to Go: An Analysis of Child Relocation and Child Abduction-Keturah Sageman

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A Criminal Defence Lawyer on Prosecutorial Discretion-Sophie Parsons

An Insight into Family Law—Parenting Matters-Juliana Dleikan

Whilst Family Law can be emotionally challenging at times, it can also be quite rewarding helping families through stressful situations to finalise parenting and financial matters and providing representation for those who may not otherwise know their rights.

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Bonnie Phillips Principal Lawyer Accredited Specialist Head of Family & Relationship Law – Coulter Legal

As a Deakin law student, journeying through my studies in Contracts, Commercial, and Tax Law, the prospect of studying (let alone practicing in) Family Law, was at the opposite end of the spectrum of where I saw my career to be headed.

Family law has given me a breadth of experience over the years; from working in private practice as a junior lawyer and volunteering my spare time with Women’s Legal Service Victoria (“WLSV”), to now managing one of the largest Family Law teams across metropolitan Melbourne and Regional Victoria.

For many of the students in my cohort, the ultimate goal was to finish law school and attain a graduate role at a large commercial law firm. This was considered to be the definition of success.

My time volunteering at WLSV was both humbling and rewarding — it was a great start to my career as a junior Family Lawyer. It opened my eyes to the challenges facing women in society who are experiencing relationship breakdown, and it ignited my passion to make a real difference. Often, the advice that I was required to provide at WLSV was urgent and complex. My role there could have been likened to triage in a hospital emergency department.

Women called in distress, frequently requiring access to emergency accommodation, family violence intervention orders, and advice as to parenting arrangements and securing financial support. I recall a particularly serious call, whereby a woman called me at WLSV after her home was burnt to the ground by her former husband, and she and the children were left with nothing more than the clothes on their backs.

Whilst remaining calm and reassuring the woman, I was required to provide her with levelheaded advice as to the immediate next steps for her and the children, such as attending the police to apply for an intervention order, as well as refer her to the necessary supports.

Having achieved a high distinction average in Tax Law, and after shadowing a prominent barrister in a landmark tax case before the High Court of Australia during my studies, I was fortunate enough to land one of these coveted graduate roles at a commercial law firm in 2010. On day one of my graduate year, I walked through the front door of the law firm, fresh faced, enthusiastic, and picturing a long career ahead of me acting for corporations and organisations in complex tax disputes.

However, to my surprise, upon meeting with human resources, I was informed that my first rotation at the firm, would be in Family Law. Whilst I was grateful to have the opportunity of a graduate role, I recall thinking to myself 'there must have been some mistake, Family Law is not for me!' — oh, how wrong I was.

Fast forward to 2023, and I have now been practicing exclusively in Family Law for the past 12 years. The truth is — I have never looked back.

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Whilst confronting for me at the time as a junior Family Lawyer, I could see the impact that my assistance was having for these women, and it was extremely rewarding.

surprising first graduate rotation was in Family Law, as it allowed me to find an area of the law that suited my personality, abilities, strengths, and passions. As it turns out, Family Law has been the right choice for me after all.

Supporting women and victims of family violence remains an area of the law that is still very important to me and arises in many of the cases that I continue to handle to this day.

In addition to these types of issues, I now also act in a variety of Family Law matters, including divorce and de facto separations, parenting arrangements, interstate and international relocations, child abduction, adoption, surrogacy and fertility law, child support, property settlement, and the preparation of Binding Child Support Agreements and Financial Agreements (colloquially known as “prenups”).

The matters range from being heard in the Federal Circuit and Family Court of Australia, the Magistrates’ Court of Victoria, and some cross over with proceedings before the Supreme Court of Victoria if they involve commercial disputes. Indeed, Family Law matters are far reaching and often involve many other areas of the law including criminal, wills and estates, commercial, and of course, tax law.

No two days are ever the same in Family Law, with each client presenting with their own unique story, issues, and challenges. The day may begin by resolving a basic property matter between two parties by consent, and end by issuing an out of hours urgent application to ground an aeroplane to prevent a child from being abducted overseas.

It is an exciting and ever-changing area of the law that only truly presented itself to me in practice, after I had finished law school. It is an area that requires a lawyer to exhibit various skills, including technical legal ability, empathy, interpersonal skills, and advocacy.

I

am

forever

grateful

that

my

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Annette Lakey Growing up watching Ally McBeal and LA Law, Annette was captivated by the glamour of the legal profession.

When she finished school with top marks, she says becoming a lawyer was a ‘nobrainer’. However, it didn’t take long for her to realise that the practice of law was not quite as Ally McBeal portrayed…

in the shower or sitting on the toilet, she realised there was something very wrong with the way her profession was practised.

Armed with a laptop, printer and mobile phone, Annette established Lakey Family Law from her onebedroom unit in Malvern in 2015 with a clear vision – she was going to do family law differently. Lakey Law’s focus would be on resolving clients’ disputes outside of the courts.

‘I soon learned that there was a lot more to being a lawyer than looking good in a suit. Life as a junior lawyer was hard work and long hours.’

‘I’d seen so many people go through the court system left broken, financially destroyed with little hope of establishing an effective co-parenting relationship.

It was heartbreaking.’

After being exposed to conveyancing and business law while completing her articles, Annette knew she wanted to ‘focus on real-world problems’, which led her to family law. Over the next twenty years, she worked with a variety of firms here in Victoria and interstate.

In addition to being an Accredited Family Lawyer, Annette is also an Accredited Family Dispute Resolution mediator, having studied the practice back in 2010, well before mediation was a common feature of family law matters (or virtually compulsory, as it is today).

While each firm was different, the culture wasn’t. The push to ‘bill, bill, bill’ and stop work if the money in trust ran out, didn’t fit with who she was and her desire and drive to make a meaningful difference in her clients' lives.

Since then, she has encouraged her clients to see mediation as an opportunity to resolve their matter sooner, with less expense and without destroying what’s left of their relationship in the process (which is so important when there are children involved).

‘I went into family law because I wanted to help people. Hounding them for money while their lives were in crisis just didn’t sit right with me.’

Explaining that ‘even where parties aren’t able to reach agreement on everything, the mediation process itself brings the common ground to

When her last employer told her she should be billing the time she spent thinking about a matter while

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light and helps to set a conciliatory, outcome-focused approach for future proceedings.’

‘While it is very pleasing to see so many in the profession embrace mediation in recent years, there are still many simply paying ‘lip service’ to it…

Unfortunately, litigation is and always will be, very lucrative for lawyers…’

As an advocate of alternate dispute resolution, Annette has recently trained in and begun offering her clients a collaborative law approach.

Collaborative law is a dispute resolution practice that offers couples who are separating a pathway for resolving areas of dispute more amicably.

Through a written agreement, both parties and their lawyers commit to not threaten or enter into litigation, and to fully disclose all matters relevant to the dispute until the process is complete. The lawyers have a further duty to work collaboratively to achieve the best outcome for the family as a whole and are prohibited from representing their client in litigation if the process is unsuccessful.

‘While collaborative law is a relatively new practice here in Australia, I expect we’ll see more and more clients asking for and wanting to use the process.’

While her focus on finding resolution as quickly and amicably as possible typically results in lower legal fees for her clients, it has also meant that her past clients are overwhelmingly happy with and positive about their experience with Lakey Family Law and actively refer family and friends to the firm.

Over the last eight years, her resolution focussed approach and genuine commitment to achieving the best possible outcome for her clients have allowed her firm to grow organically. She now employs four family lawyers and two admin staff across offices in Hawthorn and Mornington.

Family law is very much a femaledominated profession, and while not intentional or deliberate, Lakey Family Law is an all-female firm.

Over the course of her career, Annette enjoyed and benefited from the mentorship of many different women and is now using her experience to provide the same opportunities to today's young lawyers.

‘It’s my hope that in the coming years, we continue to see the next generation of family lawyers embrace alternate methods of dispute resolution, and work together to get the best outcome for their clients.’

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Vinh Nguyen Associate, Forte Family Lawyers

A recent interlocutory decision in the Federal Circuit and Family Court of Australia (Division 1), Woodcock & Woodcock (No 2) [2022] FedCFam1F 173 (Woodcock), raises the possibility of a radical change in the way discretionary trusts are treated in Australian family law.

Under sections 79(4) (marriages) and 90SM(3) (de factos), the court must be satisfied that it is just and equitable to make an order altering the property interests of the parties. This necessitates the early identification of the existing legal and equitable property interests of each party.

What is a discretionary trust?

Where one or both parties have an interest in a discretionary trust, consideration is given to whether the assets owned by the trust are divisible property or otherwise to be taken into account as a financial resource.

In other circumstances, an interest in a trust will be a mere expectancy and will not be taken into account.

A trust is a legal relationship where one party (the trustee) holds property on behalf of another party (beneficiary). The appointor of a trust can remove and appoint a trustee, and in family law disputes, is often found to have ultimate control of the trust.

A discretionary trust is a particular type of trust, where the trustee has discretion about how to allocate the income and assets of the trust between beneficiaries. The terms ‘discretionary trust’ and ‘family trust’ are often used interchangeably.

Cases involving discretionary trusts become more complex where there is a dispute about who has control of the trust and/or where the property of the trust was not derived from the parties —such as in cases involving intergenerational wealth. Third parties who have an interest in the trust may be joined to, or intervene in, family law proceedings to try to preserve the property of the trust.

Discretionary trusts may be used as a vehicle to allocate income in tax advantageous ways and to protect assets from being exposed to claims from creditors. They are common in Australia and frequently feature in family law disputes.

Kennon v Spry The High Court decision of Kennon v Spry [2008] HCA 56 (Kennon) clarified the position in relation to discretionary trusts for family law purposes.

Division of property under Family Law Act 1975 (Cth) In Australia, the division of property between married couples and separated de-facto parties is governed by the Family Law Act 1975 (the Act).

During the 25-year marriage the husband (Spry), himself a QC, established several discretionary

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trusts of which he, the wife and their children were beneficiaries.

Spry later executed various deeds removing himself and the wife as beneficiaries and establishing separate trusts for each of the four children. He argued that the trusts fell outside the definition of property under the Act. It was the wife’s position that the assets in the trusts should be characterised as property and sought to set aside the deeds executed by the husband. Ultimately, the wife was successful.

Woodcock The decision of Woodcock may represent a change from the longstanding approach enunciated in Kennon, namely, that for trust assets to be included as property, one of the parties must have both effective control of the trust and rights as a beneficiary of the trust.

In Woodcock, the husband is one of at least 52 beneficiaries of four separate family trusts, estimated to be valued at many millions of dollars. It is uncontested that the husband had received distributions of over $15million in the previous 5 years.

The wife contended the husband’s rights in the trusts was property and could be valued. The husband conceded his beneficial interest but argued it did not constitute property and was incapable of valuation.

The High Court determined that: 1. Assets held in a trust is property if: a.

b.

discretionary

A party has power or control over the trust (including as appointor, trustee or director of the corporate trustee); and That party has the right to receive benefits from the trust.

The parties asked the presiding Judge to determine the following matters on a preliminary basis:

2. A beneficiary’s rights to: a. Due administration of the trust (requiring the trustees to at least consider whether, and in what way, to exercise their discretionary powers)[1]; and b. Due consideration (requiring the trustee to exercise their discretionary powers to distribute income in good faith, upon real and genuine consideration and in accordance with the purposes of the trust), are property.

1. Were the husband's rights to due administration and due consideration property for the purpose of Section 79 of the Act? and; 2. Were the husband’s rights capable of valuation?

Justice Wilson made a preliminary finding that the husband’s interests in the trust are property and are capable of valuation. The value (if any) of the husband’s rights as a beneficiary of the discretionary trusts has not yet been determined.

Significant weight was attributed to the facts that: 1. Spry had control of the trusts; 2. The trust assets came from the efforts of parties (not third parties); and 3. If the trust structure had not been established, the assets would have clearly been property of the parties or either of them.

In Woodcock, the Court made a preliminary determination intended to help the parties narrow the issues in dispute. However, the decision may have a profound impact on the treatment of discretionary trusts in family law settings and beyond.

1. Brereton J in Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 at [32] – [33]

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In April 2023,[2] following an unsuccessful mediation, further orders were made requiring the wife to elect whether to join the trustees to the proceedings, within a specified timeframe.

It is understood that the case is heading towards a final hearing.

Given the substantial value of the trust assets, it seems likely that the case will be appealed whatever the outcome at trial. It may therefore be some time until the matter is resolved through the courts.

2. .

Woodcock and Woodcock FedCFamC1F 238.

(No

3)

[2023]

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WHO ARE YOU FIGHTING FOR?

Growing up, I never envisioned that I would be practicing criminal law. My childhood was spent living in low socio-economic neighbourhoods and trying to navigate that environment; a world where the police were always around, knocks on the door, sirens, loud screams, tears, people who do not speak English but communicate by sharing produce grown from their garden — things that ordinary people would not be exposed to.

As I now practice in children's criminal law, two common questions that people seem to ask are ‘how can you defend guilty people?’ and ‘how can you live with yourself?’

I tell them that the media pitches this narrative of "gang" violence, unsafe neighbourhoods, the need to be tough on crime and the idea that the ONLY fitting response is to place all offending youth in prison where they belong. I tell them this approach to those less fortunate is a significant error in judgment and has consequences that are beyond their comprehension.

Our beginnings lay a foundation for our priorities, strengths, and sometimes weaknesses as an adult.

These external influences stay with you and colour your perception of law enforcement, and those who interact with the system.

The community responses also remain with you, but as things are unfolding in childhood you don't think of the impact or how these moments stay with you and will shape your choices as an adult.

People who felt very little struggle whilst growing up have no idea what it is like not to have enough food, to barely be able to afford a school uniform, live off welfare, wear second hand clothing; to belong to a family that is fractured, with family members who abuse you or abuse others and how witnessing this all creates childhood trauma.

You go through school; with determination and some luck you make it to year twelve, though the trauma, anxiety and stress come with you.

That trauma eventually surfaces and, at some point in the developmental journey, is expressed; for these young souls it is usually in their teens. Some mistakes are life-changing and others less noticeable, but their effects are still significant.

Then come the questions. What do you want to do? What are your strengths and weaknesses? How do you want to contribute to society? What are your motivating factors? These are some of many questions that you must ask yourself.

People forget that these offenders are children, that children’s brains aren’t

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Menoz Bowler

T h e c h i l d r e n are our future, we have an obligation to look after them.

fully matured, and children make mistakes. These children have tabloids writing their narrative, passing judgment, deciding their future. These are children who are self-medicating and seeking support from the wrong people to escape from mental illness or their experience of childhood trauma.

For all that I witnessed and experienced as a child, those humble beginnings have given me perspective, depth, and an ability to understand but also to relate. The ability to help support young children who are struggling. To help them learn from their mistakes, get them connected to support, education or other training pathways, and show them a life where their narrative does not involve terms of imprisonment and judgment passed by those who do not understand, makes it all worthwhile.

It certainly does take a village to raise a child, and every village needs a good children’s lawyer.

You need to practice law to make it equitable, to foster forgiveness, to guide, and to support some of those children with underlying behavioural issues that need early intervention and support. Some of those children are broken and most remind me of my younger self.

Practice law for those who cannot speak. Practice criminal law for those who need you the most. Practice law to change the lives of those you will never know you have touched.

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Dan Nicholson

Dan Nicholson has built an impressive resume. He works as the Executive Director of Criminal Law at Victorian Legal Aid, is a Director on the Sentencing Advisory Council, and was appointed to be on the Victorian Law reform commission.

Like most successful professionals, however, his path hasn’t always been easy.

campaigns. I did a lot of work in East Timor when I was younger and learnt so much from that, I also found volunteering work in the Community Legal Centre a great thing to do.

You really only need one job at a time, so don't be afraid to look for different jobs away from the mainstream and not to worry about what you might be in 10 years, because if you can find a series of jobs that interest you then you might find you have a career. Your values are what are important, and for me, they are to help people practically realise their human rights everyday. That's what has driven me and is the one theme in my different jobs, to try and have a big impact in achieving human rights.

I didn't always really enjoy studying law when I was a student.

There were a lot of parts that I didn't find particularly interesting.

But after a while I had some opportunities to do volunteer work and I realised that I was interested in helping people understand their human rights, and particularly working on the intersection between people and the state. So, after doing a few different things like working at a Community Legal Centre and spending some time overseas doing human rights work, and working at the Department of Justice, I landed at Victorian Legal Aid, and I've been here for 11 years.

Dan has recently been reappointed as a Commissioner on the Victorian Law Reform Commission. He speaks to that experience, and what the role entails.

Dan shares his journey for students who would like to follow a similar path but aren’t certain on how to reach it.

I was just going about my job and I got a call from someone who was interested in appointing me. It is something I do on top of my day job, and there are 9 commissioners who are all lawyers and have different backgrounds and perspectives.

I remember having the same struggles when I was in law school, and I didn't really know what I wanted to do next, however I found a series of jobs that were interesting to me and fit with my values. So my advice would be to get involved in human rights

The commissioners consider submissions from stakeholders and the community in preparing reports. The different perspectives 19

are interesting, but there's a real commitment to working together as a group to come up with answers.

find some part that you like, and you will find your place in the law.

Since I've been there, a review of sex offences was referred to us by the Attorney-General and one of the things recommended was that they should move to a model of affirmative consent and this was passed as Victorian Law recently, so you can see the recommendations you make being realised. What we're all trying to do is bring about evidence-based law reform.

Moreover, he details his involvement on the Sentencing Advisory Council as a Director.

It's a small organisation that has directors from a range of different backgrounds in the law. The aim of the sentencing advisory commission is to bridge the gap between the community and the government in sentencing policy.

People often have strong views about sentencing.

To give an example, you often hear people say that judges are out of touch with the community, and they don't sentence harshly enough. However, if you put someone in the shoes of the judge and give them all the information, generally people in the community would sentence the same as a judge. So, a big part of it is trying to shift the perception of sentencing and inform the community about what’s really happening.

Finally, Dan shares his advice for students.

Even though it doesn't always seem that fun when you're studying, particularly at the start, you should stick at it because you'll probably

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Maryam Naz Badvi – Senior Associate Lawyer at Burn City Legal

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Maryam is a former Deakin University Bachelor of Laws / Science student, who graduated in 2016.

the parties is not amicable, this process involves the parties being in separate rooms; this is a situation that is more common when children are involved. As a last resort, if an agreement cannot be reached, the matter goes to trial.

Her legal journey began when she interned at AED Legal Centre. She went on to become a legal assistant at Pasha legal and commenced her legal career as a law clerk before becoming a solicitor. Several lawyer positions later, she now works as a Senior Associate Lawyer at Burn City Legal.

Eight/nine years later she has learnt to compartmentalise, and though she can sympathise with her client’s situations, there is no emotional toil.

Her advice is that when a situation becomes emotional, it is important to listen to your client, to assure them that you can help them with their legal needs and to reiterate that they have done the right thing by contacting you. In cases where abuse is apparent or possible, she advises that a client make a report to the police and to perhaps obtain an AVO. In the situation where a client is too terrified to go to the police on their own, fearing for their lives, you may be required to accompany them to the police station.

Though Maryam can practise criminal law, commercial law and civil litigation, she prefers practising in family law. Maryam acknowledged that many aspiring lawyers may find family law emotionally taxing, especially when children are involved; however, she prefers this area of law as she can form relationships with her clients. Family law is a ‘passionate’ law area, and it is an area of law that is not as ‘dry’ as perhaps commercial law or other areas of law may be.

As a family law practitioner, she enjoys getting to know her clients — breaking down any barriers to understand their concerns and motivations in order to provide them with the best solution to their legal issues. Finding the solution to a legal matter is ‘exciting’.

The most challenging part in practising family law is when your client has done all the right things in terms of disclosure/fee payment/court appearance and the other party stonewalls procedures/events, for example, not disclosing financial position by the required date, which can result in more legal fees and time wastage for your client as proceedings may be prolonged.

Working as a full-time lawyer — especially in family law, can make the work/life balance difficult — expect long hours, especially when you first commence your career. On a good day you may be home around 6pm, on more challenging days this could be 7.30pm or later. If you are involved in a litigation, the times can be even later as clients can contact you via phone, SMS and email expecting immediate assistance.

Maryam’s advice to any aspiring family lawyer is to shadow a family law barrister — with their consent.

Observing the family law barrister in different aspects of a trial such as a cross examination can be eye opening and motivating.

A lot of family law involves mediation, negation and conciliation — be prepared for this. This involves sitting around a table with your client, the other party and their lawyers, trying to come up with a solution to which all parties can agree. If the relationship between

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Alfina SamarasA Family Lawyer with a Different Approach Samaras Lawyers

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somewhere to go to, outside of the legal system, to try and resolve their matter amicably, or at the very least, limit the issues in dispute.

It was a clear acknowledgement that often, a Courtroom is not the best place to resolve a family law matter.

In 2006, the Family Law (Shared Parental Responsibility) Act reshaped the family law scene once again. The amendments to the legislation allowed for a presumption in favour of the sharing of parental responsibility, which had the flow on effect of requiring the Court to consider equal time between parents, and if that was not appropriate, substantial and significant time with the non ‘live with’ parent. This was a significant change in the law, and one highly welcomed by many Father’s groups. The changes were less welcomed by victims’ support groups, concerned that the amendments posed a very real risk to families where domestic violence was an issue and often, unreported.

In 2011 and then again in 2018, legislation was passed to better protect victims of violence. The Family Law Amendment (Family Violence and Other Measures) Act 2011 broadened the definition of family violence.

The legislation finally recognised emotional, psychological and financial abuse. In 2018, the introduction of the Family Law Amendment (Family Violence and Cross Examination of Parties) Act 2018 provided further protections for victims of abuse by preventing them from being questioned directly by their perpetrators in Court proceedings.

The above is just a snapshot of the last 20 years (there were many other significant developments, but due to word count, not explored in this article). This small snapshot is demonstrative of the way the family law space has evolved as society has evolved. There is no reason to think that the future will be any different. In fact, given the speed at which technology continues to advance and the impact that it is having in all facets of law, the speed of change is likely to become even more rapid.

There has been a real movement towards the protection of children the subject of family separation, and a shift towards allowing them to have a voice in the process. The voice of a child might find its way to the Court in the form of a child expert’s report, submissions made by an independent children’s lawyer and, in some circumstances (albeit limited) a child may meet with a Judicial Officer to provide their view directly. Increasingly, professionals in the family law space are undertaking training to better understand and communicate the views of children and their needs to really give children their ‘voice’ in Court proceedings.

Additionally, family law practitioners are becoming creative, and developing and embracing new processes all with a view to keeping separated families out of the Court system. What were once unheardof practices are now mainstream attempts to resolve matters early on, family dispute resolution, mediation, collaborative practice, to name a few. There is a current buzz in the family law space about ways to resolve matters amicably, and creative lawyers all over the world are developing new and better ways to meet that challenge.

Finally, this generation of family lawyers are embracing technology like never before. Automation is saving time, allowing less room for error delivering services to clients faster and more cost effectivley.

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It is the next generation of soon-to-be lawyers that will take the delivery of family law services to the next level. For those who were born in the 2000’s tech is in your DNA, and it is only a matter of time before the family law space benefits from your knowledge and expertise. I truly look forward to seeing what this next generation of family lawyers bring to the table.

With all this talk of rapid change, technological advancement and ‘new law’, the question really does need to be asked, is there a place for ‘old law’ in this space? The short answer is, ‘Yes’.

Family lawyers rely on their experience. Often in family law, lawyers need to read between the lines to understand what is being said. A victim of abuse will not necessarily identify as a victim or even understand the various forms violence can take. A child at risk may be trying to protect their abuser. A party may be hiding assets in a complex web of structures with only small clues revealing themselves in the evidence.

Technology and AI is only as good as the information that it is fed. Emotional intelligence and lived experience play a significant role in understanding the needs of a particular client with their set of circumstances. It is the next generation, who will have the knowledge of the ‘new’, but who I hope will also understand and embrace the need for the ‘old’, it is that generation who will drive better outcomes for separated families.

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LIES! Law Student Shocked to Discover Sentence That Read ‘In Short’ Was Not, In Fact, Short

We’ve all been there. You’re 40 pages into the judgement, there are at least another 40 to go. The judge has been rambling over one element for at least 6 or 7 paragraphs too long, when you see it. ‘In short…’

In. Short.

You’ve done it. You’ve arrived. The judge is finally going to make their point. You can feel it. Clarity is coming. And then, a crushing blow. It was not, in fact, short. The judge actually manages to drag their point out for another 3 pages!

It was this exact situation that brought Sandy Jenkins to the Damages Incurred office door. She is here today with a message: ‘No More.’

‘It’s just not good enough, you know?’ Sandy said, in a meeting with our DI correspondent. ‘You read, and you read, and you read, and you have to just trust…and then they hit you with that! It’s time we do something. We must demand better judgements.’

A recent survey of DI readers founds that a staggering 97.6% have been mislead by phrases such as ‘in short’, ‘to summarise’, and ‘in conclusion’. With numbers this high, it’s little wonder most also reported feelings of dread, apprehension, and anxiety when reading judgements.

‘It’s the fear of the unknown,’ said one DI reader, who asked they remain anonymous. ‘You just never know when you can trust them, and when you can’t.’

Given the widespread nature of this phenomena, our Damages Incurred team is looking into the viability of a class action lawsuit for emotional damages. More to come.

With the never-ending pile of academic reading and assignments due and exams coming, sometimes it's nice to take a second for some levity. Enjoy this edition of the DLSS' satire blog Damages Incurred.

You can find all past editions through the DLSS website.

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Jade Briani Hopper It is well known that family separation results in significant psychological and financial distress. When assisting clients in these circumstances, a family law practitioner is presented with the challenge of juggling the subjective and objective dynamics concerning the legal side of separation.

Previously, the Australian family law system was comparable to the separated couples in movies, where the Court proceeding continues in an arduous production of character assassination until one party presents “winning” evidence of adultery.

However, through the introduction of the Family Law Act in 1975, there is no need to prove that one party was at fault, but instead, fault has been replaced by the understanding that neither party is required to be legally responsible for the marriage breakdown. It is argued that the reform has allowed for family law to be less adversarial, reducing time and cost in the process, as well as empowering people to leave relationships without the requirement of a reason.

Financial separations (referred to as property proceedings) under the Family Law Act are based on factors that can be quantified and allocated to each party. These factors follow the same steps regardless of the circumstances, and can be outlined as follows: a) the Court first determines the pool of assets, liabilities, and financial resources; b) it assesses the relevant contributions made by each party to the acquisition, conservation, and improvement of the property pool; c) it evaluates the future needs of the parties; and then d) it adjusts the outcome to ensure that previous steps have not produced a manifestly unjust conclusion.

It is via this process that the Court determines the division of the parties’ assets based on the particular facts and circumstances of each proceeding. These steps provide strict guidelines regarding the factors that will be considered when determining a financial separation split, and allows family lawyers a clear understanding that allocating fault will not change their client’s financial settlement. In fact, relying on emotive language and descriptions, or elaborating on the reason for the relationship breakdown, is so strongly opposed by the Court that they rarely make an appearance in a property proceeding.

The legal side of a financial separation eradicates the bulk of emotion from the relationship, and focuses instead, on actions that can be, in theory, quantified. It requires a lawyer to listen to the story of a client’s relationship and determine how much each element is worth to their client or their ex-partner. It is the art of arguing that, for example, contributing a property at the start of a relationship equals a 2% adjustment to their client or a higher earning capability equals a 5% adjustment to the ex-partner, which will, in the eyes of their client, reduce lifetime milestones and achievements to seemingly insignificant percentages.

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Clients will regularly view this as a clinical process that produces a real, observable, and enduring influence on their lives. Our work as family lawyers in assessing the potential property percentage split appears to appraise their relationship and diminish it to calculations. Their time, effort, and love are reduced to percentages transferred from one column to another until we reach a final percentage split – we are purely mathematicians ending a major part of their lives.

Regardless of the understanding of the Court’s process, there is an appreciation by family lawyers that we are meeting clients during one of the most emotional and traumatic moments in their life. The separation process for clients cultivates an assortment of sadness, anxiety, resentment, and frustration. When meeting a family lawyer, clients are frequently expressing and sharing private material, often for the first time. Consequentially, such consultations (both initial and subsequent) can be extremely emotional.

It is, therefore, understandable that the process of separating assets in a property proceeding will unavoidably appear cold, unsympathetic, and impersonal to clients. While the benefits that the family law no-fault jurisdiction provide are understood by lawyers, attempting to reiterate them to a client during an emotional time is unlikely to be appreciated or offer much comfort. As such, it is not surprising that on many occasions, clients will interpret information included in Court documents, and communication to the other side, as the opportunity to articulate “their story”.

Regardless of the explanation of what factors are taken into consideration in a financial separation, clients often want to be assured that their lawyer, the other side, and the Court have every fragment of information before a life changing decision is reached. In almost every case, this information involves the story of how the relationship ended with fault, and blame being assigned. It follows that clients will seek for their family lawyer to provide them with sympathy, empathy, and emotional support – often far exceeding a typical client/lawyer relationship and crossing over into the realm of psychology. It is the learnt art of appreciating that, while their matter is one of a lawyer’s many files, this is the most important area in their client’s life.

In understanding the law, lawyers are adept to appropriately advise clients. By offering emotional support, lawyers are able to obtain their client’s trust. It is this delicate line that family law lawyers must walk – between the coldness of the maths and the softness of the psychology.

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Keturah Sageman, Partner, Nicholes Family Lawyers

Introduction International marriages are commonplace in Australia. While children with dual nationality can benefit from their parent’s respective cultures and countries of origin, the consequences of a relationship breakdown can lead to one parent taking the children across international borders, without the consent of the other parent. What legal remedies are available in such cases? If one parent applies to relocate the child’s residence overseas, the Australian Court has a wide discretion to either grant or refuse such an application. International relocation disputes present a myriad of challenges for clients and practitioners alike, with the often-competing interests of parents, and the rights of children.

This article will discuss the legal principles that apply to international relocation applications in Australia. It will also examine the wrongful removal or retention of children internationally, drawing on the Hague Convention on the Civil Aspects of International Child Abduction (an international treaty known as “The Hague Convention on Child Abduction”) as it applies in Australia. From this analysis, a main point of distinction between the resolution of child relocation and abduction matters is apparent. In Australia, Courts will determine that a proposed international child relocation must be in the ‘best interests’ of the child. By contrast, the Hague Convention on Child Abduction is a forum dispute based on determining where the child is habitually resident, and its purpose is to secure the child’s prompt return to that contracting state.

Preliminary Matters: How Does a Relocation Application Come About?

Where one party decides to move with their child/children to another country, this is known as child relocation. If an agreement can be reached between the parties regarding the proposed relocation, they can enter into an Application for Consent Orders to formalise the agreement. However, if the parties cannot reach an agreement, the party wishing to relocate can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a relocation order or permission to

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relocate the child to live elsewhere. This is a discretionary decision. Such cases have been described as ‘the hardest cases [the Court] does, unquestionably’. (1) Responding to Relocation Applications Whether a relocation order is granted for a child to live outside of Australia will depend on an analysis of several factors under the Family Law Act 1975 (Cth) (“the Act”), but most importantly, on whether such an order would be in the ‘best interests’ of the child. [2] The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. [3] While the concept of a ‘meaningful relationship’ is particular to the individual parent/child relationship, relocation, especially internationally, will impact upon the ability of the child to maintain a meaningful relationship with the non-resident parent. [4] It may be that one parent has secured work in another country and wishes to move with the child or children, or that one parent wishes to move closer to their own family after the separation, and the family lives overseas. The challenge, however, is to ensure that the child’s relationship with the non-resident parent will be facilitated.

For the parent seeking the relocation order, it is incumbent upon them to demonstrate that moving overseas will still enable the non-resident parent to spend time with the child and to maintain a meaningful relationship between them. The High Court in AIF v AMS[5] held that the party seeking the relocation is not required to provide “compelling reasons” for the proposed relocation. In a subsequent High Court decision of U v U[6] it was said that while freedom of movement of a parent is a constitutional right in Australia, in an international relocation application, the child’s best interests is the paramount consideration.

The Role of The Hague Convention on Child Abduction The Hague Convention on Child Abduction (“the Convention”) provides a framework for returning children to their country of ‘habitual residence’ where one parent wrongfully removes or retains them in a Hague Convention country without the other parent’s consent. If the Court finds that the child was wrongfully removed or retained under the Convention, it will make a return order requiring that the child be returned to their country of habitual residence. Once the child has been returned, the issue of custody or access rights will be left to the relevant Court within that jurisdiction to determine. In this way, the Convention seeks to expeditiously return the child to the appropriate domestic ‘forum’ to resolve the parenting dispute.

The Family Law (Child Abduction Convention) Regulations 1986 incorporate the principles of the Hague Convention on Child Abduction into Australian law. The Australian FCFCOA will, subject to certain jurisdictional requirements, facilitate the prompt return of the child to their country of habitual residence unless 1. House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on the exposure draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (August 2005), 22.

2. Family Law Act 1975 (Cth) s 60CA. 3. Ibid s 60CC(2).

4. Vontek & Vontek [2017] FamCA 28.5 [1999] HCA 26 5. [1999] HCA 26.

6. [2002] HCA 36

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certain exceptions apply. For example, Article 13(b) of the Convention provides that a Court is not obliged to return a child if there is a grave risk that their return would expose them to physical or psychological harm, or otherwise place them in an intolerable situation. In a recent legislative amendment to the Australian regulations, family and domestic violence is now considered by the Court under the “grave risk” defence.

Conclusion Relocation of children outside of Australia often results in intractable disputes between parents about children. These cases are determined based on whether such a relocation is in the best interests of the child under the Act. Where children are removed from their home country without the consent of both parents, child abduction issues arise, and urgent legal remedies are available via the Hague Convention on Child Abduction. For international child abductions, the Court’s mandate is to determine whether there should be an expeditious return to the child’s country of habitual residence. The determination of forum is not based on “best interests” considerations.

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Sophie Parsons, Partner I In-House Counsel & Accredited Criminal Law Specialist, Doogue + George Defence Lawyers

The Lawyer X scandal and ongoing public inquiry into the trial of Bruce Lehrmann have focused significant attention on the exercise of prosecutorial discretion and other fundamental principles of our criminal justice system. These cases demonstrate how prosecutorial decisionmaking is critical in all criminal cases and why it is important criminal defence lawyers understand how prosecutorial discretion operates in practice.

The Lawyer X scandal The Director of Public Prosecutions (DPP) Ms Kerri Judd KC recently declined to prosecute a number of people involved in the Lawyer X scandal, including police officers, following recommendations by the Office of the Special Investigator (‘OSI’). The OSI was set up following the Royal Commission into the Management of Police Informants in Victoria, to examine whether crimes were committed by Lawyer X (Nicola Gobbo) and current or former police officers, and to determine whether criminal charges or disciplinary proceedings were warranted.

Ms Judd KC refused to lay charges after forming the view there were no reasonable prospects of conviction, due to the passage of time and likely unreliability of Ms Gobbo as a prosecution witness, and questionable public interest to pursue the case. This decision was publicly criticised because police officers and others involved in the Lawyer X scandal will not face

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criminal charges. There will be no accountability for the actions of police that amounted to an abuse of power and undermined the rule of law.

There has also been debate about whether the DPP can properly exercise prosecutorial discretion impartially in circumstances where the alleged misconduct involves police officers. Prosecutors often work closely with police. It has been suggested there may be instances where other persons or bodies independent of the police should make the decision to prosecute.

The ’passage of time’ The DPP deemed the passage of time as having a significant bearing on the prospects of conviction in the Lawyer X scandal, which was primarily concerned with events 15 to 25 years ago. However, many people are charged with offences involving even greater

periods of delay, particularly historical sexual offences. From a criminal defence lawyers perspective, the reasoning that was applied by the DPP in the Lawyer X scandal ought to be applied more frequently in favour of our clients where similar factors arise.

prosecutorial discretion is central to the inquiry into the trial of R v Lehrmann, which has provided a level of transparency that is unusual for criminal trials.

The Public Lehrmann

Mr

Prosecutorial discretion: the Policy and practice

The public inquiry into the rape trial of Mr Lehrmann revealed the reverse of what happened in the Lawyer X scandal in Victoria.

The prosecutorial discretion is a powerful tool.

The discretion is exercised by police and prosecutors at every stage of criminal proceedings, from when a person is first charged with criminal offences.

Inquiry

into

the

trial

of

R

v

It is apparent ACT police did not want the case against Mr Lehrmann to proceed because of insufficient evidence, and felt pressure from the ACT DPP Mr Shane Drumgold, to persist prosecuting despite these concerns.

Mr Drumgold gave evidence during hearings that he formed the view police were reluctant to proceed with charges because of external political pressures. This was later retracted by Mr Drumgold when he admitted political interference was not possible after reading submissions to the inquiry.

Mr Lehrmann’s defence counsel Mr Steven Whybrow KC criticised Mr Drumgold for failing to properly comply with his duties as DPP and being overly zealous in his support of Ms Higgins given his role and duty of impartiality.

Among other things, the inquiry’s final report will make findings about whether Mr Drumgold breached several duties by his conduct in the proceedings involving Ms Higgins and Mr Lehrmann. This would be a concerning outcome, not just for criminal defence lawyers who represent accused people and interact with prosecutors in criminal trials, but our entire community who benefit from fundamental principles of justice including the right to a fair trial. Following the inquiry’s findings being released early by the media, Mr Drumgold resigned from his position as ACT DPP. The importance of impartiality The importance of impartiality in the exercise of

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It is essential criminal defence lawyers understand prosecutorial decisionmaking in practice, how the principle is exercised, by who, and according to what principles. This will ensure relevant factors are addressed effectively and persuasively in submissions and more favourable outcomes secured.

In practice, criminal defence lawyers prevail upon police and prosecutors to exercise prosecutorial discretion in a number of ways: To decline to charge a person with criminal offences; Consider an alternative outcome such as a formal caution; Negotiate charges to resolve a matter in the most favourable way including laying less serious or alternative charges; Make favourable

concessions on sentence; Decide whether to adduce evidence at a trial; Withdraw charges; and Discontinue a prosecution.

particular

One of the realities of prosecutorial discretion is that it is exercised by individuals who are human beings with unique skills, experiences, and idiosyncrasies. This means it is impossible to predict or standardise the approach that may be taken in any given case, although there are general police and prosecutorial practices and guidelines that assist in this regard.

The Policy of the Director of Public Prosecutions in Victoria (‘DPP’) sets out the criteria for when a prosecution may proceed: There must be a reasonable prospect of conviction; and A prosecution must be in the public interest.

[1] The Policy sets out detailed matters that must be considered in determining whether there is a reasonable prospect of conviction including but not limited to: The admissible evidence; The reliability and credibility of the evidence; Whether the prosecution witnesses are available, competent, and compellable; and Any possible defence.

The Policy directs that a prosecution must proceed unless there are public interest factors tending against prosecution which outweigh those tending in favour. The Policy also sets out a broad range of public interest factors including the seriousness and age of the offence, and other offender and victim related factors. Complainants and witnesses do not have the power to decide whether an alleged offender is charged or prosecuted, although their views may be considered.

[1] Policy of the Director of Public Prosecutions for Victoria, Authorised by K Judd KC: 24 January 2022; https://www.opp.vic.gov.au/wpcontent/uploads/2022/10/DPP-Policy.pdf

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There are occasions when charges are not filed, or prosecutions are discontinued despite the complainant’s preference for the prosecution to continue.

Notoriety provides opportunity

These notorious cases provide a useful insight into prosecutorial decisionmaking and why vigilance is required to ensure the discretion is exercised properly.

For criminal defence lawyers, an additional priority is ensuring the discretion is exercised to the benefit of our clients.

AN INSIGHT INTO FAMILY LAW — PARENTING MATTERS Juliana Dleikan Criminal Defence and Family Lawyer Freemont Family Lawyers In Conversation with Chrissa Karouzakis 35

One of the many parts of the role of a family lawyer, is guiding clients through the process of determining parenting arrangements, and the many intricacies this entail.

being protected from harm.

The Court also takes into consideration other factors such as a child's age, their relationship with each parent, siblings and other family members, and ensures that parenting arrangements are practical.

Parenting arrangements can either be agreed to by consent, or parties may seek the assistance of the Family Law Courts to finalise parenting matters.

It is important to note that there are instances where a party may file an application with the Court, seeking parenting orders, without first making a genuine attempt to resolve matters outside of Court first and without obtaining a section 60i Certificate. Examples of when a party may do so, are as follows: There are allegations of child abuse or family violence or risk of child abuse or family violence; The application is urgent; If a party would be unduly prejudiced if required to complete the pre-action procedures; or If a previous family law application has been filed by one of the parties in the last 12 months.

Before making an application seeking parenting orders with the Federal Circuit and Family Court of Australia, parties must adhere to pre-action procedures and are expected to make a genuine attempt to try and resolve matters between themselves, if it is appropriate to do so. This involves the parties attending Family Dispute Resolution, to discuss parenting arrangements, to reach an agreement. If this method is unsuccessful, or if a Family Dispute Practitioner does not think it is suitable for the parties to attend mediation, the parties will be issued a Section 60(i) certificate, which is generally required to file an application seeking Parenting Orders. This certificate shows the Court that the parties have made a genuine attempt to resolve matters, prior to filing an application with the Court.

It is often presumed that parents have shared parental responsibility for their children. This should not be confused with time spend arrangements, being how much time, each child spends with each parent.

The Court's primary concern in relation to parenting arrangements, is whether they are in the best interest of the children. The court considers it in the children's best interest that they: 1. Are protected from physical and psychological harm, including from being exposed to family violence; and 2. That they benefit from having a meaningful relationship with both parents, subject to them

Sole parental responsibility means that one parent does not have to consult with the other parent of the child before making major decisions concerning the child.

There are instances where one parent may seek sole parental responsibility for several reasons, including safety concerns for the children and in high conflict situations.

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It is important to note whether the existing parenting arrangements are documented as: Parenting Orders, which are sealed Court Orders, and are binding on the parties; Parenting Plan, which is a signed document by the parties, however, is not binding, given it is not an Order made by the Court; or An informal agreement between the parties.

follow the same process as if they were applying to the Court for the first time, to vary an existing parenting Order.

There are many resources readily available to assist parents and children going through separation: Family Relationships have a 'Supporting Children after Separation’ program. This helps children to adjust to the changes that arise from separation and to express their feelings and thoughts about separation.

Family Relationships also provide several brochures for parents to assist them understand how to deal with their children during this sensitive time.

Children's Contact Services — help children from separated families establish or maintain a relationship with the parent they do not live with, or with another family member.

Children's Helpline — a 24 hour helpline providing counselling for children and young people.

Relationships Australia is an organisation that helps families during separation and divorce, offers a number of programs and courses, and provides brochures of information readily available.

The first step to amend parenting arrangements would be to try and discuss any proposed changes with the other parent, to reach an agreement and update the current arrangements.

If the current arrangements are documented by way of a parenting plan or an informal agreement between the parties, and one parent is seeking to amend the current arrangements, they must follow pre-action procedures, and may then file an application with the Court, seeking the parenting orders they wish to make.

If, however, there is an existing Court Order regarding parenting arrangements, the party seeking to amend the Order will need to show that there has been a significant change of circumstances that makes a change necessary. If both parties agree with the change, and should the proposed change remain in the best interest of the child, the parties can jointly file an application for Consent Orders.

Alternatively, if the proposed change is not agreed, the party seeking the change must show the Court that there has been a significant change in circumstances which makes a change necessary and will need to

Whilst Family Law can be emotionally challenging at times, it can also be quite rewarding helping families through stressful situations to finalise parenting and financial matters and providing representation for those who may not otherwise know their rights.

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