Want to talk to a lawyer about family law? This is the next best thing: an open conversation in which Perth lawyers Khew Wong and Kyran Nunes take a look at the real-world problems people need to solve, and the questions they need answered, during the process of filing or responding to a Family Law case such as a VRO (Violence Restraining Order).
The full transcript is below!
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Khew (Q) Wong: Welcome to WN Legal‘s first podcast. My name is Khew, surname’s Wong W-O-N-G, and I will be the host of this podcast. Together with me, we have the whole team in this room. We have Kyran, my business partner. He’s also a fellow legal practitioner in this firm. There’s also Caris and Aimee, they’re both legal practitioners as well.
Before we begin I do have to place a disclaimer that this podcast is a general discussion so to say of the areas of law that we practise in that the public may be interested in. It should not be, by any means, be substituted for legal advice whatsoever as each case is different.
To begin with I believe Aimee has some questions for Kyran?
Aimee Price: I do, I have some family law questions for Kyran. This first podcast will relate to children’s proceedings and just some basic I suppose introductory type style questions, so Kyran.
Kyran Nunes: Yes.
Aimee Price: What are the requirements to file at the family court if you’ve got a children’s matter? What should you consider and what things do you need to have done first prior to filing?
Kyran Nunes: Well generally the processes Aimee, is that you would normally have to have attended family dispute resolution or at least proved to the court that you’ve tried to resolve the matter outside of court prior to filing court documents. So inevitably when you are doing your court documents you’re going to have to provide them with a certificate to say that you have obtained or have mediated and have attended FDR and that that was not successful. Obviously, the court has a high backlog and they would like matters to be dealt with by parties themselves, as opposed to resorting to the family court system, so that should always be seen as a last resort.
Aimee Price: Okay thanks, Kyran. I suppose what then are the exceptions? I’m assuming there are numerous exceptions, so what would be some of the instances where a party doesn’t have to undertake FDR or it doesn’t have to go to some sort of mediation first?
Kyran Nunes: So look, I would say in all the urgent circumstances. If you look at it, I would probably say when you’re dealing with an abuse case, if there’s family violence, if there are flight risk issues then surely you would want to get that into court as soon as possible to prevent another parent from flying or in those type of [inaudible 00:02:30] circumstances. Those are the main ones I would say.
Khew (Q) Wong: If I can interject, I’m led to believe that … we have a recent case we’ve dealt with in terms of the public receiving legal advice at a time when they think that the other partner is going to flee with the child and something panned out in that situation. Could you, so to say, entertain us with what actually happened, not in this case specifically but what advice so to say would you provide in the situation where you believe the other party’s going to abscond?
Kyran Nunes: So look, the main thing to do in these type of circumstances is to immediately attend the family court or get a legal practitioner to assist you, to file an urgent application. Mainly what you would want to do is to put the other party on the watchlist, what we call the airport watchlist. What would happen is if that fleeing party tried to attend the airport, then the immigration department would be notified and it would spring up with a warning saying that this child is not to fly in any circumstances. The best way to do it is to automatically go to the court as soon as possible. Normally you should receive an urgent court date, probably within 48 hours in these type of circumstances. You would probably need to write a letter to the court explaining the urgency of the matter and file your appropriate court documents.
Khew (Q) Wong: I guess what should you not do in this situation, so to say?
Kyran Nunes: Look often what happens is when there’s no court orders involved and a parent who often does not have the child living them on a frequent basis, if that other parent is to take the child without the consent of the primary carer, what we call the primary carer of the child or the children, then what the primary carer can do in those circumstances is file for what we call a recovery order. Now a recovery order is one you can also bring on an urgent basis and whereby you would not need to file a family dispute resolution certificate in order to start the proceedings. In those circumstances, I’d probably say you’d want to get it in as soon as possible, try and recover the child and have that heard by the court as soon as possible.
If they are happy that you are the primary carer what they will do is they will grant a recovery order and they would also grant an order whereby the federal police can go and search and recover the child if you do not know the child’s whereabouts.
Aimee Price: Okay. And how do you go about determining who is the primary carer? So in line with that recovery order question there. What sort of things will the court look at to determine who that person is?
Kyran Nunes: So normally, especially when you’re dealing with younger children you’d be looking at who had the primary attachment with the child, so who looked after the child on the more frequent basis. Often in cases, you would have one parent working and providing more financially and the other parent looking after the child day to day, so the parent is basically feeding the child on a frequent basis, staying at home looking after the child. Those are the obvious signs that there’s a primary carer in that type of situation.
Aimee Price: Okay. Also flowing on from that, what should you do if you’re being denied access to your children? So they’re maybe not a flight risk and maybe not subject to a recovery order, but if one parent is denying access, what would be your first port of call in terms of regaining that access?
Kyran Nunes: I’d probably say look you’d always want to try and deal with it in terms of an amicable manner because you are going to have to co parent that child. If there’s no issues in terms of abuse and serious maybe drug use or alcohol consumption, then you’re probably going to have to co parent that child going forward. So I’d probably recommend that you go by and try and keep it as amicable as possible, and try and negotiate something. Even via text message or try and resolve it outside of using lawyers and getting them involved.
Khew (Q) Wong: But that is in proviso that obviously, it’s not a very violent relationship, so we say [crosstalk 00:06:59].
Kyran Nunes: Definitely. Khew I completely agree with that. Obviously, it’s all tailored depending on the circumstances. If there’s any risk to a child whereby maybe the parent’s using drugs and that would affect their ability to parent the child, if there’s any risk in terms of sexual abuse, family violence or those type of things, that’s not up for negotiation. That’s one of the circumstances where you won’t need to negotiate or file a family dispute resolution certificate.
Often I think you just need a … it’s a common sense type thing. If it’s not an issue whereby you’ve got all those risk factors then you can negotiate. Try and deal with it amicably because you got to think about the long run. If it’s one where one parent is trying to control the situation and there’s no court order, then the appropriate way is to set up a meeting for family dispute resolution as soon as possible. The waiting times are probably-
Khew (Q) Wong: Six to eight.
Kyran Nunes: Yeah. Six to eight weeks ranging at this point in time. Sometimes even longer. So I’d probably set that up as soon as possible, continue trying to negotiate and then get to a lawyer to get proper advice if you can. That would probably be my advice in those circumstances.
Aimee Price: Okay. I think we see a lot now, or maybe not nowadays, but we’ve seen a lot at this firm at violence restraining orders playing a part in family court and children’s proceedings as well. This question’s probably a little bit more directed at Khew because it’s his area of law I suppose. How generally I suppose, how does a VRO affect access to your children and what sort of things must someone take into account if they’ve got a VRO placed upon them or they’re thinking of placing a VRO upon someone?
Khew (Q) Wong: Well I have to be very careful when we dwell into this issue because I can only explain from my experience in dealing with restraining orders matter. I’m by no means an advocate or saying that it shouldn’t happen in any event, but what people, what I face at least, are clients coming in telling me about issues relating to the child, and therein lies the next issue, a restraining order being placed on my client. At the same time when the child’s not in my client’s care.
This practise, WN Legal, obviously we do it two ways; we deal with the family law side of things, but we also deal with the restraining order side of things. We always see restraining order as being, so to say, the first factor that prevents a person from seeing the child because when there’s a restraining order placed on a client, they can’t see the child. That part I believe in the next podcast we will discuss about restraining orders specifically because it is in any event a very, very lengthy conversation we will have, a discussion we’ll have about restraining orders.
But they do affect so if there is a restraining order that’s interim, usually it’s an interim one, that is placed, to begin with, and prevents you from seeing the child, you should read the interim orders very carefully because there are provisions in the old one at least, in part B of the interim orders. Not sure now because there is a new act that’s coming along, but part B of it would say look you can speak to the child, you can communicate in certain situations but sometimes there’s just a blanket interim order. The blanket order would prevent you from seeing the child.
Aimee Price: Okay.
Khew (Q) Wong: So if that’s the case, well you need to seek legal advice first, that’s the first point of call. With an interim order in place, don’t go there and knock on the door and try and speak to the child, obviously without reading the interim order very carefully. I’ll just stress that again, very, very carefully, because a breach of a restraining order under section 61 from memory of the restraining orders act 1997 Western Australia, says that it’s a criminal breach.
A criminal breach upon third strike there is a policy, so to say, that mandates the consideration of a custodial term. Don’t wait for the third count. We don’t want to get there for the first count so to say, so we have to be careful, yeah.
Aimee Price: Okay.
Khew (Q) Wong: That’s how it would affect the whole situation. That point in time when the child’s not with you and you have an interim order, speak to a family lawyer, speak to Kyran, because a form or an application or an application in family court, does not so to say circumvent the interim order. But in any event family court orders supersede restraining orders, albeit interim or final order, it supersedes. So speak to a family lawyer.
Aimee Price: Okay. Beautiful. Is there anything else Kyran that you want to add in relation to that discussion or any of the topics that you think might be good general advice for anyone experiencing children’s issues or family law issues in general?
Kyran Nunes: I’d probably say look it’s intertwined a lot when you’re talking about restraining orders and the risk factors, restraining orders often overlap with the family court proceedings. As Khew has rightfully stated. A family court order does have the power to override a violence restraining order, but it is absolutely crucial that you understand the obligations that are imposed by a violence restraining order and ensure that you do not in any way breach the violence restraining order until such time as you’ve sought relief from the Family Court of Western Australia.
Khew (Q) Wong: Alright. I think we shall conclude this podcast. Thank you for listening.
There’s a lot to consider, and much that you need to know when moving through the Family Court of Australia – especially when it comes to family matters such as a VRO. We hope this discussion has answered some of your questions, but we cannot stress enough how important it is to seek legal advice before taking action in this complicated legal process.
If you need legal support or advice with family law – or criminal law – contact us at WN Legal. Our Perth team of experienced lawyers are on-hand to assist you through your legal and court processes.
