April 23, 2024 • 35 mins
Going through a relationship breakdown is difficult for anyone. When you add children to the equation and tensions escalate to the point of legal proceedings, it's hard to spot a winner.
That’s why the 2024 amendments to the Family Law Act 1975 hold such significant interest for those working in the field or facing a family law matter.
In this episode, Senior Associate and Practice Leader of Relationship Law, Rob Dilley, talks to Arbitrator, Mediator and Barrister, Colin Forrest SC. Colin also served as a trial judge in the Family Court of Australia for ten years before resigning in 2021.
In this episode, you’ll learn about:
- The new amendments that place the rights of the child to see the parents at the forefront (not the rights of the parents to see the child)
- Why it’s now harder for court orders to be changed
- How the role of Independent Children’s Lawyers has changed
Disclaimer
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. You should see a solicitor for complete advice that relates directly to your situation.
For more information please visit:
Our extensive online resources on Family Law.
For more information on the family law reforms, here's a fact sheet for parents prepared by the Attorney-General's Department.
You can also download our free eBook, Families and the Law: A guide to help you navigate the family law system.
If you have a legal issue and live in regional NSW you can find out more at Catherine Henry Lawyers, or call the team on 1800 874 949.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
If you work in family law or are goingthrough the family law courts for a
personal matter, you'll want to know aboutthe new reforms that have been introduced
recently.
I'm Catherine Henry and in this episode ofLaw Matters, practice leader in
relationship law at my firm, Rob Dilley,will talk to barrister, mediator and
(00:20):
arbitrator Colin Forrest about the impactwe're seeing from the Family Law Amendment
Bill 2023.
Colin Forrest has had an impressive careerin law.
Early in his career, he worked as a familylaw solicitor and he was also an associate
to Justice Michael Kirby when he was onthe New South Wales Court of Appeal.
Colin served as a trial judge in theFamily Court of Australia for 10 years
(00:44):
before resigning in 2021.
He's now back working as a barrister,mediator and arbitrator in family law in
Brisbane.
He knows family law very well and will beable to give great insight into these
recent changes.
I hope you enjoy this episode.
(01:10):
Hi, I'm Rob Dilley, practice leader inrelationship law at Catherine Henry
Lawyers.
As Catherine has just mentioned, we'relooking at the changes that have been
adopted within family law in the past sixmonths.
These amendments have been described asthe biggest changes in at least 15 years,
if not longer, to the family law system.
(01:30):
The Family Law Amendment Bill 2023 bringseven more focus on the rights and best
interests of the child.
And to talk through this today,
I'm pleased to welcome Colin Forrest tothe podcast.
Colin, welcome.
Yeah.
G'day, Rob.
Thanks for having me along.
Thanks for Catherine too, for inviting me.
It's great to have you here, Colin.
So I'm going to just dive straight intoit.
(01:52):
Do you feel these changes are a step inthe right direction?
I think so, Rob.
Yes, I do.
They certainly refocus.
That's probably the better word ratherthan saying focus, but they refocus
everyone's attention on
the best interests of the child or thebest interests of the children of a
separating couple being what should beprincipally motivating them in respect of
(02:20):
the arrangements they make for parentingafter separation and certainly that guide
the court in determining the arrangementsthat the court puts in place when parents
can't agree between themselves.
I'm tempted to just ask you whether or notyou think
that the courts will react well to thisbecause the basis for that, I suppose,
(02:44):
speculation is that the best interests ofthe children was always, as I understood
it, the preeminent concern in creatingthis legislation.
Yes, that's true.
Always has been.
That's why I say refocus.
That focus shifted away a little bit withthe 2008 amendments that brought in that
presumption that...
(03:04):
It's always in the best interests of achild for their parents to have equal
shared parental responsibility for them.
And of course, as you know, thatpresumption is being repealed with this
amending legislation and taken out of theAct.
The problem with that presumption, in myexperience, both as a practicing family
(03:25):
law barrister in the years after it camein and then as a judge on the family court
for 10 years, was that...
large sections of the separating parentingcommunity and the rest of the community
equated that with a right, a parentalright to equal time with a child or
(03:46):
children after separation.
Yes.
I think all practitioners have thatdifficulty explaining the difference to
their clients.
Yes.
So I actually think that the court,
Well, you know, it depends on thephilosophy of the judge, of the individual
judge, of course, their attitudes to it.
But I think the court as a whole willprobably welcome it.
(04:08):
And indeed, I see some of the changesresulting in judges having to do a little
bit less work in writing their judgments.
The pathway is less windy towards gettingto the ultimate orders that a judge is
going to make.
And there are less matters to consider.
(04:29):
And as I say, the central focus is back onthe best interests and the safety of the
child or children.
All right.
Let's just take a look now at what iscalled the codification of Rice and
Asplund, which essentially makes it harderto change court orders.
What are these changes and why are theysignificant?
(04:50):
If I recall correctly, Rice and Asplund isa case that was decided way back in 1979,
I think.
And it was a case in a line of cases thatauthoritatively determined that when a
court, when the family court is beingasked to effectively make changes to
(05:13):
existing parenting orders, the court hasto be satisfied that there's been a change
in the circumstances that existed at thetime the
order that's being asked to be changed wasmade.
And that has always been effectivelyapplied by judges authoritatively on the
(05:38):
basis that it was a line of authority thatwas pronounced and handed down by the full
court of the family court.
This provision simply does what you said,codifies that into the legislation so
there is no doubt.
that there's now a statutory legislativebase for the requirement for an applicant
(06:02):
parent who comes to the court with anexisting parenting order and says, I want
this to be changed.
And I'm talking about an existing finalparenting order, not an interim one, but
an existing final parenting order saying,I want this to be changed now by the
court.
Now the court...
is now guided by the legislation ratherthan the Rice and Asplund Authority.
(06:26):
And the legislation says effectively thata judge can't change a final order unless
and until that judge has consideredwhether there's been a change of
circumstances.
And I think the word might be significantor substantial from memory.
Significant change of circumstances sincethe order was made.
(06:50):
and as well unless the judge is satisfiedthat it's in the best interests of the
child or the children to change it.
So it doesn't mean a judge can't change itunless there's been a change of
circumstances, but the judge can't changeit unless the judge has considered whether
(07:10):
there has been or not.
So it's effectively conferring adiscretion on the judge to consider change
of circumstances and potentially to
refuse an application to change finalorders, final parenting orders, unless
there's, unless satisfied that there'sbeen a change of circumstances and that
(07:31):
the best interests of the child require achange in the order.
But the test essentially remains the same,doesn't it?
Pretty much the same, yeah.
Yeah, the interesting part will be,because it's not set out in the
legislation, the interesting part will bewhether there's an initial hurdle.
You as a family lawyer will appreciateexactly what I mean, Rob, whether there's
(07:52):
an initial interim hurdle, whether thereneeds to be an application heard and
determined very early in the process orwhether it just simply awaits a final
hearing.
That's always been an issue arounddetermining rice and asplund applications
(08:14):
and it remains so, so it'll be interestingto see if the court...
deals with any differently.
Traditionally, Rice and Asplundapplications were heard as initial interim
hearings that effectively treated theprocess as a hurdle that the applicant had
to get over if they wanted to proceed to afinal hearing.
(08:35):
Yes, and I've had to cross that hurdle acouple of times in the course of my career
and it's a process I don't look forwardto.
But I dare say that it won't be changedfrom that.
But.
That'd be matter for the court and thejudges to determine.
All right.
And there's also been the introduction ofa harmful proceedings order.
Could you just outline what that entails?
(08:58):
Yeah, this is one of probably one of themost significant changes to the act so far
as I'm concerned.
There's always been in.
Well, I won't say always, but therealready is in the act existing legislative
provision for vexatious proceedingsapplications for someone.
For example, a parent who considers thatthe other person's been acting vexaciously
(09:21):
and bringing them to court too many times.
And I had a number of those matters that Ihad to hear and determine when I was a
judge.
You know, sometimes it can be multiple,multiple times that a person's been
brought to court by the other party.
Tens, twenties, thirties times or more,you know, and it can happen right
throughout the life of a child inparenting matters.
(09:41):
This is specifically now being introduced.
and called the harmful proceedingsapplication.
So a parent, and it's not just, it'sinteresting because it's coming in with
all the other amendments that are allabout, principally all about the parenting
part of the act, but interestingly, it'savailable in property proceedings as well.
(10:06):
So basically, the court now is being giventhe power or the authority,
to make an order on the application of oneof the parties to proceedings before the
Act, be they parenting or property orboth, or of its own motion.
Now that's an important point to remember,Rob.
(10:29):
Of its own motion means a judge candetermine to make the order even in
circumstances where neither of the partieshas asked for it.
That is quite significant.
Yeah, and it can be made...
at any stage in the proceedings, right?
So it can be made during a trial or at theend of a trial, which is determining final
(10:53):
orders, for example.
So if a matter has been bouncing along inthe court like lots of them did when I was
there and the judge thinks that theconditions required to make a harmful
proceedings order have been satisfied,they can do it in their final judgment.
you know, when they're making the finalorders, they can say, I'm also satisfied
(11:16):
that the conditions for harmfulproceedings order are made and I make it.
So basically, if the court is satisfied,as I say, on its own motion or on the
hearing of an application brought by oneof the parties, that allowing one of the
parties to be able to bring an applicationand to bring further applications to the
(11:39):
court unchecked,
and I'll come back to what uncheckedmeans.
In the future is going to manifest harm tothe other party or in parenting cases to a
child or children of the couple, then thejudge can say, well, I'll make an order
(12:01):
that you're not allowed to bring anapplication without first gaining the
leave of the court.
So,
an application has to be made to the courtto say, can I have the leave to bring
another application?
So it's all about harm and harm is likemental distress and emotionally emotional
harm or even financial harm is referred toin there.
(12:25):
So if you're able to convince a judgethat, you know,
this person has effectively brought you tocourt too many times and has cost you
hundreds of thousands of dollars, youmight be able to run an argument and you
don't have any left and if he keepsbringing you and you're going to keep
suffering financial harm, you might beable to persuade a judge that he or she on
the other side shouldn't be allowed tocome back to court unless given leave.
(12:48):
And then the provisions also allow for,they require a judge to ask the person
who's the applicant for the order or thebeneficiary of the order.
whether or not they want to be givennotice by the court of any further
applications for leave that are brought bythe other person.
So a parent can say, no, I don't even wantto know if my former partner is seeking
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leave until it's determined.
So a judge can say, you can't bring anyfurther applications without coming back
and getting leave at the court.
And we're not even going to trouble yourformer partner with knowing that you've...
that you're bringing such an application,you have to persuade us first.
This is very interesting.
This is an incredibly wide discretion withan incredibly wide ranging power to stop
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proceedings in their tracks or indeed stopthe proceedings before they are even
brought on foot.
And I can instantly see that there ismassive utility in this, both for the
courts and for parties who are worn down.
by the progress of family law proceedingsand as many practitioners would recognise
and people who are in the system, theywould instantly identify with the fatigue
(14:01):
that everyone suffers.
Well, that's the idea, you see, becausethere's masses of expert evidence that
have been produced over the years thatongoing high conflict between parents is
what results in the most negative outcomesfor children or results in negative
outcomes for children.
And this is all about trying to stop suchongoing, well, trying to stop the
(14:28):
consequence of such ongoing conflict beingongoing litigation and abuse of the
process at the courts to further familyviolence against a partner who might be
the victim of family violence.
It's going to be incredibly interesting tosee how this particular new provision
plays out.
(14:48):
Yes, and I suspect Rob that a new field ofwork for family lawyers, family law
solicitors and barristers will be acombination combining resistance at the
Rice and Asplund application level with anapplication for a harmful proceedings
order.
I think your analysis is probably right onpoint Colin.
(15:11):
All right, so what about the role of theindependent children's lawyer?
How will they become more involved?
Well, independent children's lawyersthroughout Australia in different states
have in the past had some differentpractices about how they ascertain the
views of children, the children that theyrepresent.
(15:31):
And what was described by family lawyersin Australia as the New South Wales model
and the Queensland model, New South Walesindependent children's lawyers have
generally always had this approach wherethey
talk directly to children while they're inthe process of representing them to find
(15:52):
out what their views are.
Because the views of children have alwaysbeen matters that the courts require to
take into account, of course, attributingappropriate weight depending on the age of
the child, the level of maturity, thecircumstances surrounding the expression
of their views.
The New South Wales ICLs have always sortof happily, well, always taken on the task
(16:15):
of talking directly to children.
Queensland ICLs have usually left theprocess of ascertaining views to people
who they consider to be experts, likefamily report writers, social workers and
psychologists, social scientists who writereports for the court, family assessment.
And generally they'll leave it for thereport writer to ascertain the views,
(16:40):
sometimes sitting in with them themselves,but generally leaving it to them.
Now, the...
Objects of the Act in Section 60, CapitalB have been changed quite fundamentally in
this amendment and there's now only twoobjects, one of them being that the best
interests of children are served and two,that the legislation gives effect to
(17:05):
Australia's accession to the Convention onthe Rights of the Child.
One of the clauses in the Convention onthe Rights of the Child, I think it's 11
or 12, is quite specific on children'sviews being heard and taken into account
(17:26):
in any proceedings that involve them.
And so that translates into family lawproceedings, into the parenting
proceedings that involve children.
So the legislation now mandates ICLs totalk to children.
leaves it up to them to how they do it.
I think it stops them talking to childrenunder five years of age.
(17:49):
They don't have to.
They don't have to if there areexceptional circumstances.
So they can say, well, there areexceptional circumstances in this case, so
I won't talk to the children or the child.
But it leaves it up to the ICL todetermine how.
And so Queensland ICLs will probably, andlots of ICLs around the country will
probably just continue to do it through
(18:12):
the family report process, but making surethey turn up at the start of the family
report or afterwards, sometime around it,to talk to the children to ascertain their
views.
And it can be done at any stage in theproceedings.
It doesn't have to be done straight awayat the start when they're first commenced.
It can be done right up to the time of thetrial.
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If the ICL asserts that there areexceptional circumstances, that matter
still has to be determined by a judge.
Judge has to decide, yes, okay, I acceptthat there are exceptional circumstances,
so you don't have to talk to the child orchildren.
But it's still, it's not just left up tothe ICL.
The ICL have to make out a case to thecourt as to what the exceptional
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circumstances were.
Potentially, and I've seen some commentaryon this, asserting this, and I don't
disagree with it, but I say potentially,that leaves it open, possibly for ICLs to
have to...
get in the witness box and give evidenceand be cross -examined by lawyers
representing the parents as to why, whatthe exceptional circumstances were.
(19:20):
Indeed.
That will be interesting.
Colin, looking at the amendments as awhole, is there something that strikes you
in particular or preeminently as how theimpact of these changes will be seen on
families who are seeking custody?
In the course of preparing for thispodcast, I went back to the Attorney
(19:45):
General's website, read some of their factsheets, read some other papers that people
had written, read one of my own Iprepared, did last year at the New South
Wales Law Society conference.
The Attorney General, there was an op -edpiece that the Attorney General Mark
Dreyfus wrote for one of the newspapersjust after the legislation was first
(20:08):
introduced to Parliament.
And he cited figures, which I've got nocause to disagree with, presumably he had
the information delivered to him bygovernment, that he said there's only
about 3 % of separating couples actuallyend up going through the court and getting
(20:28):
determinations from the Family Court, orthe Federal Circuit and Family Court of
Australia as it's now called, thatactually construct their parenting
arrangements for them by way of a courtorder.
So that's a really interesting point.
So that tells you 97 % of separatingcouples in Australia, they're able to
resolve their ongoing parentingarrangements after separation without a
(20:51):
court order imposed upon them withouttheir consent.
So mediation, family dispute resolution,pre commencement of proceedings is very
important in helping people do that.
But even mediation and family disputeresolution processes after proceedings
(21:11):
have been commenced play a big role inpeople reaching agreement.
Now, what Mark Dreyfus, the AttorneyGeneral, said when he was introducing this
legislation is that this new legislation,these amendments, importantly are about
helping those parents better understandand more simply understand the framework.
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and the basis upon which they are makingtheir parenting arrangements.
And I think to some degree that it doesassist, it does simplify and make it
easier for understanding.
However, there is going to be a differencein my view, and I've stated this publicly
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before, there'll be a difference in someof the cases that come before the court.
It arises around the change
to the abolition of the presumption.
There was previously, or it still is untilthe 6th of May, but there's a presumption
that it's in the children's best interestsfor parental responsibility to be equally
(22:20):
shared.
And one of the things that is in thecurrent Act required parents where there
was an equal shared parentalresponsibility order made actually
required parents to
enter into joint discussions ornegotiations whenever a decision was being
made about a major long -term issue in thechildren's lives, to genuinely commit to
(22:46):
the effort of trying to reach agreementbetween them.
But importantly, and thirdly, probably inthe most significant, the section of the
Act said that those decisions had to bemade jointly.
And in a lot of cases,
where of high conflict, those, well, youknow, the small percentage of cases in
(23:09):
which there's high conflict, but in a lotof those, parents simply just can't agree
or couldn't agree on these things.
And so it made it impossible at law forthese decisions to be made because they
couldn't be made jointly.
So it always, the problem then wasrequired at one of the parents who wanted
a particular decision to take it back tocourt.
(23:31):
to get the court to determine how thatdecision was to be made, how that equal
shared parental responsibility was to beexercised.
In cases where a parent was arguing orseeking an order for sole parental
responsibility and trying to overturn thepresumption, set aside the presumption and
convince a court that equal sharedparental responsibility was not in the
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children's best interests or the child'sbest interests, that parent really bore
the burden of proof in having to establishin a court case.
that it's not in the child's bestinterests for there to be equal shared
parental responsibility order made.
Now, by abolishing the presumption, you'reeffectively, in my view, this is my view
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only of course, reversing the burden ofproof, shifting it from the parent who
says we shouldn't have an equal sharedparental responsibility order to the
parent who says we should.
And so, you know,
Some of those cases now where previouslyor up till now a parent might have said,
(24:39):
okay, okay, I'll agree reluctantly to anequal shared parental responsibility
order.
But even though I think there's some, youknow, I've got some concerns about it or
problems, I don't know that we'll be ableto reach agreement.
I don't feel that the other parent islikely to agree with me readily on these
tough decisions.
(25:00):
I'll nevertheless enter into it and giveit a go because that's the way the
legislation is written to favour thepresumption, to favour an equal shared
parental responsibility order being made.
Now though, without that presumptionanymore, and the court, if there is a, the
(25:22):
wording of the parental responsibilityorder being changed slightly, now the
court will be making orders for jointdecision making.
in respect of major long term issues.
So presumably, and I don't seek to bindthe court in any way, I'm just expressing
a view, but presumably orders will be inthe future, they'll say, and major long
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term decisions are to be made by jointdecision making or the parents shall have
joint decision making responsibility inrespect of major long term issues.
I'll talk about joint decision making.
But the section that required
a genuine effort and consultation by thejoint decision is no longer there.
(26:05):
And now they've taken away the obligationfor there to be a joint decision, for it
to have to be made, to have to be joint,to be a valid decision.
And it says, the new legislation says thatparents still have to try and make a
genuine effort to make that jointdecision, but there's absolutely no
(26:25):
requirement that it be.
mandatorily a jointly made decision.
So that'll be interesting in itselfbecause if an order says joint decision
making in respect of major long termissues, yet the Act doesn't require actual
joint decision to be made for it to be avalid decision, we'll see where that takes
us.
(26:45):
That's interesting in itself.
But I think what will happen in a lot ofcases now where a parent might have
reluctantly entered into a consent orderor accepted equal shared parental
responsibility in the past,
They're less likely to do that now.
And the other parent who wants it andinsists upon it is going to have to
convince, you know, going to have to bearthe burden of proof and put all the
(27:08):
evidence before the court to persuade acourt that an equal, you know, that a
joint decision making order isappropriate, that shared parental
responsibility is appropriate.
It opens the way for people to argue onbest interests grounds, their decisions as
a parent.
for anything to do with the children andthat also if they can argue in the best
(27:32):
interest of the child, then they cansuccessfully argue for either sole
parental responsibility or equal sharedparental responsibility.
Yes, yeah, yeah, that's right.
Or it's called joint decision making now.
The other major change, right, in respectof the abolition or the repeal, I'll call
it, probably better to call it the repealof the presumption in favour of equal
(27:53):
shared parental responsibility is,
that they've repealed the section thatthere was a section of the Act 65 DAAA, I
think, can't remember the exact letters,but a section of the Act that said where a
court makes an equal shared parentalresponsibility, they first have to give
consideration to whether equal time, sothe children living at equal time with
(28:14):
each of the parents is in their bestinterests.
And that's gone now.
So that's part and parcel of trying tochange the community attitude.
to the notion that it's a parent's righton separation to A, have equal shared
parental responsibility and B, to have thechildren living equal time with them.
And as a judge pointed out to me on oneoccasion for the benefit of my client,
(28:39):
that it wasn't the parent who had theright to spend time with the child, it was
the child who had the right to spend timewith a parent.
That's exactly right.
And that's what, you know, I rememberattending or I remember a particular
conference in 2008.
when the Equal Shared ParentalResponsibility Presumption came in and
(29:00):
that provision came in, was amended andintroduced into the Family Law Act that
said if you make an equal shared parentalresponsibility order you have to consider
equal time.
I remember a preeminent family law silkstanding up and giving us a paper on it
and saying to all the attendees, to methese amendments are all about parental
(29:22):
rights.
and not about the rights of children wherethe Act should really be focused.
So what are we now 16 years later?
And I think his words were right.
I agreed with him.
Those pigeons have come home to roost.
They have.
That's been changed.
So the focus is back on best interests.
So the vast majority of Australians whoseparate, even with children, are
(29:46):
conscious uncouplers and they enter intoamicable arrangements.
afterwards for the sharing of theresponsibility of parenting of their
children and they get on alright and thechildren enjoy meaningful relationships
with both parents.
Some no, don't and some will struggleafter separation for a while to start
(30:11):
getting on well enough to be able tomanage all of the intricacies of shared
care and children changing households andthe like.
In the cases, as I said, where there mightbe reluctance to agree to an equal share
to joint decision making, though in thepast parents have done it, bitten the
(30:31):
bullet and done it, that reluctance mightlead to there being more cases now where
there's a dispute about the joint decisionmaking.
As I say, it will be for the parent whowants it to be able to convince a court.
that it is in the best interests of thechildren in all the circumstances for
there to be joint decision making.
(30:53):
And it'll certainly be a little bit harderto be running the case that children
should be spending equal time with each ofthe parents.
All right, Colin, I think that's a prettycomprehensive overview of the new
legislation and what the implications are.
Is there any last comments you've got?
I commend the changes and I'd like to seeeveryone
(31:16):
giving them a go.
I know there will be people, there'll begroups that don't support them and feel
let down by these changes, but I thinkthat they are definitely motivated by
trying to make the process simpler andeasier, safer for people for whom it needs
(31:36):
to be safer.
And there's plenty of those in ourcommunity.
And safer, when I say safer for people, Imean for parents,
safer for children most particularly.
I think it's going to work well.
There's one area where I'd like to seesome more changes and I hope that they'll
(31:57):
be forthcoming and that is aroundincreasing the availability of outside
court resolution processes such asarbitration.
Arbitration has been
is starting to work really well in respectof property disputes, arbitration being
(32:20):
effectively the availability to people ofprivate court, so private accredited,
experienced experts who can hear theircase and give them a judgement in the same
way that a judge would, but done privatelyand so therefore much more confidentially
(32:43):
than the court process.
speedily, cost efficiently and it workswell for people who want to choose to go
down that path.
It's not available in parenting cases.
I'd like to see it.
One of my roles these days is as adirector on the board of the Australian
(33:04):
Institute of Family Law Arbitrators andMediators and our institute has put
submissions to government.
We'd like to see
broadening of the arbitration base toinclude certain parenting matters and to
give people the opportunity or the optionof getting their parenting dispute
(33:26):
resolved by an accredited professionalexpert outside the court process.
One of the best things I think we probablycan do is to give people more options to
settle matters and to have them determinedin a satisfactory and cost effective way.
Yes.
Yeah, that's true.
(33:46):
And the new changes to me immediately flagthe possibility for limiting the number of
highly contentious or vexatious matterswhich burn up the court's time and thus
free the court to attend to more importantand critical matters.
That's true.
Of course, sir, there needs to beacknowledgement and acceptance of the fact
(34:08):
that people who made the subject of one ofthose harmful proceedings orders.
won't be happy and going to be verydisappointed with the outcome.
And I can tell you from 10 years on thecourt, there are people who are not just
unhappy that become very angry with thewhole process.
That'll be the case if harmful proceedingsorders are made.
(34:31):
So not only the court and the family lawlegal profession, but also the community
has to become even more attuned to thescourge of
family violence in this country and theneed to address it and make the community
and make family life much safer for a lotof our more vulnerable people and
(34:57):
children.
Alright Colin, I think we'll leave itthere.
Thanks so much for your time today.
Thank you Rob.
I hope you got a lot out of this episodeof Law Matters.
Thanks both to Colin Forrest and RobDilley for their time.
I'm Catherine Henry of Catherine HenryLawyers.
(35:17):
And if you need help with a family lawmatter, please contact my team at
Catherine Henry Lawyers.
We'll put some links to more about familylaw and the new amendments in the show
notes.
This podcast was produced by Pod and PenProductions.
If you work in family law or are goingthrough the family law courts for a
personal matter, you'll want to know aboutthe new reforms that have been introduced
recently.
I'm Catherine Henry and in this episode ofLaw Matters, practice leader in
relationship law at my firm, Rob Dilley,will talk to barrister, mediator and
(00:20):
arbitrator Colin Forrest about the impactwe're seeing from the Family Law Amendment
Bill 2023.
Colin Forrest has had an impressive careerin law.
Early in his career, he worked as a familylaw solicitor and he was also an associate
to Justice Michael Kirby when he was onthe New South Wales Court of Appeal.
Colin served as a trial judge in theFamily Court of Australia for 10 years
(00:44):
before resigning in 2021.
He's now back working as a barrister,mediator and arbitrator in family law in
Brisbane.
He knows family law very well and will beable to give great insight into these
recent changes.
I hope you enjoy this episode.
(01:10):
Hi, I'm Rob Dilley, practice leader inrelationship law at Catherine Henry
Lawyers.
As Catherine has just mentioned, we'relooking at the changes that have been
adopted within family law in the past sixmonths.
These amendments have been described asthe biggest changes in at least 15 years,
if not longer, to the family law system.
(01:30):
The Family Law Amendment Bill 2023 bringseven more focus on the rights and best
interests of the child.
And to talk through this today,
I'm pleased to welcome Colin Forrest tothe podcast.
Colin, welcome.
Yeah.
G'day, Rob.
Thanks for having me along.
Thanks for Catherine too, for inviting me.
It's great to have you here, Colin.
So I'm going to just dive straight intoit.
(01:52):
Do you feel these changes are a step inthe right direction?
I think so, Rob.
Yes, I do.
They certainly refocus.
That's probably the better word ratherthan saying focus, but they refocus
everyone's attention on
the best interests of the child or thebest interests of the children of a
separating couple being what should beprincipally motivating them in respect of
(02:20):
the arrangements they make for parentingafter separation and certainly that guide
the court in determining the arrangementsthat the court puts in place when parents
can't agree between themselves.
I'm tempted to just ask you whether or notyou think
that the courts will react well to thisbecause the basis for that, I suppose,
(02:44):
speculation is that the best interests ofthe children was always, as I understood
it, the preeminent concern in creatingthis legislation.
Yes, that's true.
Always has been.
That's why I say refocus.
That focus shifted away a little bit withthe 2008 amendments that brought in that
presumption that...
(03:04):
It's always in the best interests of achild for their parents to have equal
shared parental responsibility for them.
And of course, as you know, thatpresumption is being repealed with this
amending legislation and taken out of theAct.
The problem with that presumption, in myexperience, both as a practicing family
(03:25):
law barrister in the years after it camein and then as a judge on the family court
for 10 years, was that...
large sections of the separating parentingcommunity and the rest of the community
equated that with a right, a parentalright to equal time with a child or
(03:46):
children after separation.
Yes.
I think all practitioners have thatdifficulty explaining the difference to
their clients.
Yes.
So I actually think that the court,
Well, you know, it depends on thephilosophy of the judge, of the individual
judge, of course, their attitudes to it.
But I think the court as a whole willprobably welcome it.
(04:08):
And indeed, I see some of the changesresulting in judges having to do a little
bit less work in writing their judgments.
The pathway is less windy towards gettingto the ultimate orders that a judge is
going to make.
And there are less matters to consider.
(04:29):
And as I say, the central focus is back onthe best interests and the safety of the
child or children.
All right.
Let's just take a look now at what iscalled the codification of Rice and
Asplund, which essentially makes it harderto change court orders.
What are these changes and why are theysignificant?
(04:50):
If I recall correctly, Rice and Asplund isa case that was decided way back in 1979,
I think.
And it was a case in a line of cases thatauthoritatively determined that when a
court, when the family court is beingasked to effectively make changes to
(05:13):
existing parenting orders, the court hasto be satisfied that there's been a change
in the circumstances that existed at thetime the
order that's being asked to be changed wasmade.
And that has always been effectivelyapplied by judges authoritatively on the
(05:38):
basis that it was a line of authority thatwas pronounced and handed down by the full
court of the family court.
This provision simply does what you said,codifies that into the legislation so
there is no doubt.
that there's now a statutory legislativebase for the requirement for an applicant
(06:02):
parent who comes to the court with anexisting parenting order and says, I want
this to be changed.
And I'm talking about an existing finalparenting order, not an interim one, but
an existing final parenting order saying,I want this to be changed now by the
court.
Now the court...
is now guided by the legislation ratherthan the Rice and Asplund Authority.
(06:26):
And the legislation says effectively thata judge can't change a final order unless
and until that judge has consideredwhether there's been a change of
circumstances.
And I think the word might be significantor substantial from memory.
Significant change of circumstances sincethe order was made.
(06:50):
and as well unless the judge is satisfiedthat it's in the best interests of the
child or the children to change it.
So it doesn't mean a judge can't change itunless there's been a change of
circumstances, but the judge can't changeit unless the judge has considered whether
(07:10):
there has been or not.
So it's effectively conferring adiscretion on the judge to consider change
of circumstances and potentially to
refuse an application to change finalorders, final parenting orders, unless
there's, unless satisfied that there'sbeen a change of circumstances and that
(07:31):
the best interests of the child require achange in the order.
But the test essentially remains the same,doesn't it?
Pretty much the same, yeah.
Yeah, the interesting part will be,because it's not set out in the
legislation, the interesting part will bewhether there's an initial hurdle.
You as a family lawyer will appreciateexactly what I mean, Rob, whether there's
(07:52):
an initial interim hurdle, whether thereneeds to be an application heard and
determined very early in the process orwhether it just simply awaits a final
hearing.
That's always been an issue arounddetermining rice and asplund applications
(08:14):
and it remains so, so it'll be interestingto see if the court...
deals with any differently.
Traditionally, Rice and Asplundapplications were heard as initial interim
hearings that effectively treated theprocess as a hurdle that the applicant had
to get over if they wanted to proceed to afinal hearing.
(08:35):
Yes, and I've had to cross that hurdle acouple of times in the course of my career
and it's a process I don't look forwardto.
But I dare say that it won't be changedfrom that.
But.
That'd be matter for the court and thejudges to determine.
All right.
And there's also been the introduction ofa harmful proceedings order.
Could you just outline what that entails?
(08:58):
Yeah, this is one of probably one of themost significant changes to the act so far
as I'm concerned.
There's always been in.
Well, I won't say always, but therealready is in the act existing legislative
provision for vexatious proceedingsapplications for someone.
For example, a parent who considers thatthe other person's been acting vexaciously
(09:21):
and bringing them to court too many times.
And I had a number of those matters that Ihad to hear and determine when I was a
judge.
You know, sometimes it can be multiple,multiple times that a person's been
brought to court by the other party.
Tens, twenties, thirties times or more,you know, and it can happen right
throughout the life of a child inparenting matters.
(09:41):
This is specifically now being introduced.
and called the harmful proceedingsapplication.
So a parent, and it's not just, it'sinteresting because it's coming in with
all the other amendments that are allabout, principally all about the parenting
part of the act, but interestingly, it'savailable in property proceedings as well.
(10:06):
So basically, the court now is being giventhe power or the authority,
to make an order on the application of oneof the parties to proceedings before the
Act, be they parenting or property orboth, or of its own motion.
Now that's an important point to remember,Rob.
(10:29):
Of its own motion means a judge candetermine to make the order even in
circumstances where neither of the partieshas asked for it.
That is quite significant.
Yeah, and it can be made...
at any stage in the proceedings, right?
So it can be made during a trial or at theend of a trial, which is determining final
(10:53):
orders, for example.
So if a matter has been bouncing along inthe court like lots of them did when I was
there and the judge thinks that theconditions required to make a harmful
proceedings order have been satisfied,they can do it in their final judgment.
you know, when they're making the finalorders, they can say, I'm also satisfied
(11:16):
that the conditions for harmfulproceedings order are made and I make it.
So basically, if the court is satisfied,as I say, on its own motion or on the
hearing of an application brought by oneof the parties, that allowing one of the
parties to be able to bring an applicationand to bring further applications to the
(11:39):
court unchecked,
and I'll come back to what uncheckedmeans.
In the future is going to manifest harm tothe other party or in parenting cases to a
child or children of the couple, then thejudge can say, well, I'll make an order
(12:01):
that you're not allowed to bring anapplication without first gaining the
leave of the court.
So,
an application has to be made to the courtto say, can I have the leave to bring
another application?
So it's all about harm and harm is likemental distress and emotionally emotional
harm or even financial harm is referred toin there.
(12:25):
So if you're able to convince a judgethat, you know,
this person has effectively brought you tocourt too many times and has cost you
hundreds of thousands of dollars, youmight be able to run an argument and you
don't have any left and if he keepsbringing you and you're going to keep
suffering financial harm, you might beable to persuade a judge that he or she on
the other side shouldn't be allowed tocome back to court unless given leave.
(12:48):
And then the provisions also allow for,they require a judge to ask the person
who's the applicant for the order or thebeneficiary of the order.
whether or not they want to be givennotice by the court of any further
applications for leave that are brought bythe other person.
So a parent can say, no, I don't even wantto know if my former partner is seeking
(13:13):
leave until it's determined.
So a judge can say, you can't bring anyfurther applications without coming back
and getting leave at the court.
And we're not even going to trouble yourformer partner with knowing that you've...
that you're bringing such an application,you have to persuade us first.
This is very interesting.
This is an incredibly wide discretion withan incredibly wide ranging power to stop
(13:37):
proceedings in their tracks or indeed stopthe proceedings before they are even
brought on foot.
And I can instantly see that there ismassive utility in this, both for the
courts and for parties who are worn down.
by the progress of family law proceedingsand as many practitioners would recognise
and people who are in the system, theywould instantly identify with the fatigue
(14:01):
that everyone suffers.
Well, that's the idea, you see, becausethere's masses of expert evidence that
have been produced over the years thatongoing high conflict between parents is
what results in the most negative outcomesfor children or results in negative
outcomes for children.
And this is all about trying to stop suchongoing, well, trying to stop the
(14:28):
consequence of such ongoing conflict beingongoing litigation and abuse of the
process at the courts to further familyviolence against a partner who might be
the victim of family violence.
It's going to be incredibly interesting tosee how this particular new provision
plays out.
(14:48):
Yes, and I suspect Rob that a new field ofwork for family lawyers, family law
solicitors and barristers will be acombination combining resistance at the
Rice and Asplund application level with anapplication for a harmful proceedings
order.
I think your analysis is probably right onpoint Colin.
(15:11):
All right, so what about the role of theindependent children's lawyer?
How will they become more involved?
Well, independent children's lawyersthroughout Australia in different states
have in the past had some differentpractices about how they ascertain the
views of children, the children that theyrepresent.
(15:31):
And what was described by family lawyersin Australia as the New South Wales model
and the Queensland model, New South Walesindependent children's lawyers have
generally always had this approach wherethey
talk directly to children while they're inthe process of representing them to find
(15:52):
out what their views are.
Because the views of children have alwaysbeen matters that the courts require to
take into account, of course, attributingappropriate weight depending on the age of
the child, the level of maturity, thecircumstances surrounding the expression
of their views.
The New South Wales ICLs have always sortof happily, well, always taken on the task
(16:15):
of talking directly to children.
Queensland ICLs have usually left theprocess of ascertaining views to people
who they consider to be experts, likefamily report writers, social workers and
psychologists, social scientists who writereports for the court, family assessment.
And generally they'll leave it for thereport writer to ascertain the views,
(16:40):
sometimes sitting in with them themselves,but generally leaving it to them.
Now, the...
Objects of the Act in Section 60, CapitalB have been changed quite fundamentally in
this amendment and there's now only twoobjects, one of them being that the best
interests of children are served and two,that the legislation gives effect to
(17:05):
Australia's accession to the Convention onthe Rights of the Child.
One of the clauses in the Convention onthe Rights of the Child, I think it's 11
or 12, is quite specific on children'sviews being heard and taken into account
(17:26):
in any proceedings that involve them.
And so that translates into family lawproceedings, into the parenting
proceedings that involve children.
So the legislation now mandates ICLs totalk to children.
leaves it up to them to how they do it.
I think it stops them talking to childrenunder five years of age.
(17:49):
They don't have to.
They don't have to if there areexceptional circumstances.
So they can say, well, there areexceptional circumstances in this case, so
I won't talk to the children or the child.
But it leaves it up to the ICL todetermine how.
And so Queensland ICLs will probably, andlots of ICLs around the country will
probably just continue to do it through
(18:12):
the family report process, but making surethey turn up at the start of the family
report or afterwards, sometime around it,to talk to the children to ascertain their
views.
And it can be done at any stage in theproceedings.
It doesn't have to be done straight awayat the start when they're first commenced.
It can be done right up to the time of thetrial.
(18:32):
If the ICL asserts that there areexceptional circumstances, that matter
still has to be determined by a judge.
Judge has to decide, yes, okay, I acceptthat there are exceptional circumstances,
so you don't have to talk to the child orchildren.
But it's still, it's not just left up tothe ICL.
The ICL have to make out a case to thecourt as to what the exceptional
(18:56):
circumstances were.
Potentially, and I've seen some commentaryon this, asserting this, and I don't
disagree with it, but I say potentially,that leaves it open, possibly for ICLs to
have to...
get in the witness box and give evidenceand be cross -examined by lawyers
representing the parents as to why, whatthe exceptional circumstances were.
(19:20):
Indeed.
That will be interesting.
Colin, looking at the amendments as awhole, is there something that strikes you
in particular or preeminently as how theimpact of these changes will be seen on
families who are seeking custody?
In the course of preparing for thispodcast, I went back to the Attorney
(19:45):
General's website, read some of their factsheets, read some other papers that people
had written, read one of my own Iprepared, did last year at the New South
Wales Law Society conference.
The Attorney General, there was an op -edpiece that the Attorney General Mark
Dreyfus wrote for one of the newspapersjust after the legislation was first
(20:08):
introduced to Parliament.
And he cited figures, which I've got nocause to disagree with, presumably he had
the information delivered to him bygovernment, that he said there's only
about 3 % of separating couples actuallyend up going through the court and getting
(20:28):
determinations from the Family Court, orthe Federal Circuit and Family Court of
Australia as it's now called, thatactually construct their parenting
arrangements for them by way of a courtorder.
So that's a really interesting point.
So that tells you 97 % of separatingcouples in Australia, they're able to
resolve their ongoing parentingarrangements after separation without a
(20:51):
court order imposed upon them withouttheir consent.
So mediation, family dispute resolution,pre commencement of proceedings is very
important in helping people do that.
But even mediation and family disputeresolution processes after proceedings
(21:11):
have been commenced play a big role inpeople reaching agreement.
Now, what Mark Dreyfus, the AttorneyGeneral, said when he was introducing this
legislation is that this new legislation,these amendments, importantly are about
helping those parents better understandand more simply understand the framework.
(21:35):
and the basis upon which they are makingtheir parenting arrangements.
And I think to some degree that it doesassist, it does simplify and make it
easier for understanding.
However, there is going to be a differencein my view, and I've stated this publicly
(21:56):
before, there'll be a difference in someof the cases that come before the court.
It arises around the change
to the abolition of the presumption.
There was previously, or it still is untilthe 6th of May, but there's a presumption
that it's in the children's best interestsfor parental responsibility to be equally
(22:20):
shared.
And one of the things that is in thecurrent Act required parents where there
was an equal shared parentalresponsibility order made actually
required parents to
enter into joint discussions ornegotiations whenever a decision was being
made about a major long -term issue in thechildren's lives, to genuinely commit to
(22:46):
the effort of trying to reach agreementbetween them.
But importantly, and thirdly, probably inthe most significant, the section of the
Act said that those decisions had to bemade jointly.
And in a lot of cases,
where of high conflict, those, well, youknow, the small percentage of cases in
(23:09):
which there's high conflict, but in a lotof those, parents simply just can't agree
or couldn't agree on these things.
And so it made it impossible at law forthese decisions to be made because they
couldn't be made jointly.
So it always, the problem then wasrequired at one of the parents who wanted
a particular decision to take it back tocourt.
(23:31):
to get the court to determine how thatdecision was to be made, how that equal
shared parental responsibility was to beexercised.
In cases where a parent was arguing orseeking an order for sole parental
responsibility and trying to overturn thepresumption, set aside the presumption and
convince a court that equal sharedparental responsibility was not in the
(23:53):
children's best interests or the child'sbest interests, that parent really bore
the burden of proof in having to establishin a court case.
that it's not in the child's bestinterests for there to be equal shared
parental responsibility order made.
Now, by abolishing the presumption, you'reeffectively, in my view, this is my view
(24:14):
only of course, reversing the burden ofproof, shifting it from the parent who
says we shouldn't have an equal sharedparental responsibility order to the
parent who says we should.
And so, you know,
Some of those cases now where previouslyor up till now a parent might have said,
(24:39):
okay, okay, I'll agree reluctantly to anequal shared parental responsibility
order.
But even though I think there's some, youknow, I've got some concerns about it or
problems, I don't know that we'll be ableto reach agreement.
I don't feel that the other parent islikely to agree with me readily on these
tough decisions.
(25:00):
I'll nevertheless enter into it and giveit a go because that's the way the
legislation is written to favour thepresumption, to favour an equal shared
parental responsibility order being made.
Now though, without that presumptionanymore, and the court, if there is a, the
(25:22):
wording of the parental responsibilityorder being changed slightly, now the
court will be making orders for jointdecision making.
in respect of major long term issues.
So presumably, and I don't seek to bindthe court in any way, I'm just expressing
a view, but presumably orders will be inthe future, they'll say, and major long
(25:44):
term decisions are to be made by jointdecision making or the parents shall have
joint decision making responsibility inrespect of major long term issues.
I'll talk about joint decision making.
But the section that required
a genuine effort and consultation by thejoint decision is no longer there.
(26:05):
And now they've taken away the obligationfor there to be a joint decision, for it
to have to be made, to have to be joint,to be a valid decision.
And it says, the new legislation says thatparents still have to try and make a
genuine effort to make that jointdecision, but there's absolutely no
(26:25):
requirement that it be.
mandatorily a jointly made decision.
So that'll be interesting in itselfbecause if an order says joint decision
making in respect of major long termissues, yet the Act doesn't require actual
joint decision to be made for it to be avalid decision, we'll see where that takes
us.
(26:45):
That's interesting in itself.
But I think what will happen in a lot ofcases now where a parent might have
reluctantly entered into a consent orderor accepted equal shared parental
responsibility in the past,
They're less likely to do that now.
And the other parent who wants it andinsists upon it is going to have to
convince, you know, going to have to bearthe burden of proof and put all the
(27:08):
evidence before the court to persuade acourt that an equal, you know, that a
joint decision making order isappropriate, that shared parental
responsibility is appropriate.
It opens the way for people to argue onbest interests grounds, their decisions as
a parent.
for anything to do with the children andthat also if they can argue in the best
(27:32):
interest of the child, then they cansuccessfully argue for either sole
parental responsibility or equal sharedparental responsibility.
Yes, yeah, yeah, that's right.
Or it's called joint decision making now.
The other major change, right, in respectof the abolition or the repeal, I'll call
it, probably better to call it the repealof the presumption in favour of equal
(27:53):
shared parental responsibility is,
that they've repealed the section thatthere was a section of the Act 65 DAAA, I
think, can't remember the exact letters,but a section of the Act that said where a
court makes an equal shared parentalresponsibility, they first have to give
consideration to whether equal time, sothe children living at equal time with
(28:14):
each of the parents is in their bestinterests.
And that's gone now.
So that's part and parcel of trying tochange the community attitude.
to the notion that it's a parent's righton separation to A, have equal shared
parental responsibility and B, to have thechildren living equal time with them.
And as a judge pointed out to me on oneoccasion for the benefit of my client,
(28:39):
that it wasn't the parent who had theright to spend time with the child, it was
the child who had the right to spend timewith a parent.
That's exactly right.
And that's what, you know, I rememberattending or I remember a particular
conference in 2008.
when the Equal Shared ParentalResponsibility Presumption came in and
(29:00):
that provision came in, was amended andintroduced into the Family Law Act that
said if you make an equal shared parentalresponsibility order you have to consider
equal time.
I remember a preeminent family law silkstanding up and giving us a paper on it
and saying to all the attendees, to methese amendments are all about parental
(29:22):
rights.
and not about the rights of children wherethe Act should really be focused.
So what are we now 16 years later?
And I think his words were right.
I agreed with him.
Those pigeons have come home to roost.
They have.
That's been changed.
So the focus is back on best interests.
So the vast majority of Australians whoseparate, even with children, are
(29:46):
conscious uncouplers and they enter intoamicable arrangements.
afterwards for the sharing of theresponsibility of parenting of their
children and they get on alright and thechildren enjoy meaningful relationships
with both parents.
Some no, don't and some will struggleafter separation for a while to start
(30:11):
getting on well enough to be able tomanage all of the intricacies of shared
care and children changing households andthe like.
In the cases, as I said, where there mightbe reluctance to agree to an equal share
to joint decision making, though in thepast parents have done it, bitten the
(30:31):
bullet and done it, that reluctance mightlead to there being more cases now where
there's a dispute about the joint decisionmaking.
As I say, it will be for the parent whowants it to be able to convince a court.
that it is in the best interests of thechildren in all the circumstances for
there to be joint decision making.
(30:53):
And it'll certainly be a little bit harderto be running the case that children
should be spending equal time with each ofthe parents.
All right, Colin, I think that's a prettycomprehensive overview of the new
legislation and what the implications are.
Is there any last comments you've got?
I commend the changes and I'd like to seeeveryone
(31:16):
giving them a go.
I know there will be people, there'll begroups that don't support them and feel
let down by these changes, but I thinkthat they are definitely motivated by
trying to make the process simpler andeasier, safer for people for whom it needs
(31:36):
to be safer.
And there's plenty of those in ourcommunity.
And safer, when I say safer for people, Imean for parents,
safer for children most particularly.
I think it's going to work well.
There's one area where I'd like to seesome more changes and I hope that they'll
(31:57):
be forthcoming and that is aroundincreasing the availability of outside
court resolution processes such asarbitration.
Arbitration has been
is starting to work really well in respectof property disputes, arbitration being
(32:20):
effectively the availability to people ofprivate court, so private accredited,
experienced experts who can hear theircase and give them a judgement in the same
way that a judge would, but done privatelyand so therefore much more confidentially
(32:43):
than the court process.
speedily, cost efficiently and it workswell for people who want to choose to go
down that path.
It's not available in parenting cases.
I'd like to see it.
One of my roles these days is as adirector on the board of the Australian
(33:04):
Institute of Family Law Arbitrators andMediators and our institute has put
submissions to government.
We'd like to see
broadening of the arbitration base toinclude certain parenting matters and to
give people the opportunity or the optionof getting their parenting dispute
(33:26):
resolved by an accredited professionalexpert outside the court process.
One of the best things I think we probablycan do is to give people more options to
settle matters and to have them determinedin a satisfactory and cost effective way.
Yes.
Yeah, that's true.
(33:46):
And the new changes to me immediately flagthe possibility for limiting the number of
highly contentious or vexatious matterswhich burn up the court's time and thus
free the court to attend to more importantand critical matters.
That's true.
Of course, sir, there needs to beacknowledgement and acceptance of the fact
(34:08):
that people who made the subject of one ofthose harmful proceedings orders.
won't be happy and going to be verydisappointed with the outcome.
And I can tell you from 10 years on thecourt, there are people who are not just
unhappy that become very angry with thewhole process.
That'll be the case if harmful proceedingsorders are made.
(34:31):
So not only the court and the family lawlegal profession, but also the community
has to become even more attuned to thescourge of
family violence in this country and theneed to address it and make the community
and make family life much safer for a lotof our more vulnerable people and
(34:57):
children.
Alright Colin, I think we'll leave itthere.
Thanks so much for your time today.
Thank you Rob.
I hope you got a lot out of this episodeof Law Matters.
Thanks both to Colin Forrest and RobDilley for their time.
I'm Catherine Henry of Catherine HenryLawyers.
(35:17):
And if you need help with a family lawmatter, please contact my team at
Catherine Henry Lawyers.
We'll put some links to more about familylaw and the new amendments in the show
notes.
This podcast was produced by Pod and PenProductions.
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