Is a “50/50” shared care arrangement automatic?
Changes were made to the Family Law Act in 2006 which provide for a presumption of “equal shared parental responsibility”. Parental responsibility is in relation to decisions around major decisions for the children (such as education, medical and religious decisions). Where the Court makes an order for equal shared parental responsibility, it must consider making an order for the children to spend equal time with both parents. The reality is that an “equal time” order is much more difficult to achieve.
The Act makes reference to there being a presumption of Equal shared Parental Responsibility except in matters where there is reasonable grounds to believe that there is Child Abuse or Family Violence.
Shared Parental Responsibility does not mean Shared/Equal time. Parental Responsibility is reference to who can make decisions for the children in relation to their Education, Health and Religion. It is a reference to those long term and “big decisions” in relation to children. It is not a reference to equal time and unfortunately this is a common misconception which we have seen since the change to the Act.
Do I have to go to Mediation?
The changes made to the Family Law Act in 2006 mean it is now compulsory to attempt Family Dispute Resolution (FDR), or mediation, prior seeking orders from the Family Law Courts. We still suggest that you seek legal advice prior to attending FDR so that you have some idea of what the law and are armed with that knowledge prior to negotiating. It may also be a good idea to get further legal advice prior to signing any written agreement reached during the FDR process.
In some situations such as urgency or where there has been family violence you can get an exemption from having to attend FDR.
What exactly is FDR?
Family Dispute Resolution (FDR) is a mediation process which attempts to encourage parents (or other significant persons) to reach agreements about children’s living arrangements and how much time they spend with each parent.
There are many different FDR service providers. Each will operate differently but many will require both parents to attend intake interview (one on one with the service) before bringing you both together.
Often the mediation session will go for a few hours. It is often possible to be arranged as a shuttle conference.
If you are contacted by a FDR provider inviting you to participate in FDR you should realise that attendance is not compulsory. If you do not attend, however, the other party will be issued with a s60I certificate which effectively then entitles them to apply to the Family Law Courts for orders. It’s always advisable to get legal advice before agreeing to attend. We can also assist to arrange a private mediation or a solicitor assisted mediation where we attend the conference component with you.
Legal Aid Family Law Conference
Often the mediation session will go for a few hours. It is often possible to be arranged as a shuttle conference.
Legal Aid also offers FDR which is held at their offices. The advantage of Legal Aid conferences is that they are run by independent practitioners who also have experience in working as Family Lawyers. You can also have your Solicitor attend the Conference with you and assist to draw up the agreement as enforceable Court Orders. It may be preferable for you to have Court Orders rather than Parenting Plans.
The Family Law Project can attend these Legal Aid Conferences with you and can also assist you to apply for a grant of Legal Aid. Only one party at the Conference is required to have a grant of Legal Aid. We attend these Conferences on a regular basis. Solicitor assisted FDR is a great option.
Have one of our Solicitors attend with you. We can also assist you to apply for a grant of Legal Aid to attend.
What is a Parenting Plan?
A Parenting Plan is a written signed agreement between parents outlining things such as parental responsibility and how much time children spend with each parent. Parenting Plans are not Court Orders and cannot be legally enforced per se. They can, however, be shown to the Court at a later date if they are signed and dated. If you are concerned that the other party may breach a Parenting Plan then you should discuss with a solicitor the option of having them drawn as binding Consent Minutes of Order.
What are Consent Minutes of Order?
Consent Minutes of Order in relation to children set out the living arrangements for the children and outline how much time they spend with each parent.
Consent Minutes of Order also set out things such as who has parental responsibility or if there is shared parental responsibility of the children.
Once signed by each party, the Minutes are sent by mail to the Family Law Courts for a Registrar to seal. Once sealed by the Court then they have the effect of being a binding Court Order.
Who Can Apply to the Courts?
If you are a parent of the child then you can apply for Orders for a child to live with you or to spend time with you. The Act also provides for Grandparents to be able to apply for orders. The Act also expressly indicates that “any other person concerned with the care, welfare and development” of a child can apply. This leaves the interpretation quite broad!
How does the Court determine where the Children Live?
Equal time is actually not a common order made by the Court which is largely due to the nature of the matters that reach the Court. Usually if a matter is before the Court then the parents of the child have some difficulty in terms of their communication and co-parenting which would not lend well to a shared care arrangement. The Family Law Act stipulates that children have the right to communicate with and spend “substantial and significant time” with both parents. Ultimately, the Court will look at what is in the best interests of the children and ensure that they are safe.
The Court will consider things such as distance between houses, how well you communicate, routines of the children, family violence and any other factor relevant to your particular children.
The children’s wishes are one factor that may be considered. The weight given to their wishes will depend on their age and maturity.
The Act allows you to apply for Orders for a child to “live with” you or to “spend time” with you. You are also able to apply for orders to communicate with children which extends to communication such as Skype and FaceTime (yes, the Court is keeping up with technology …. to a certain extent!).
I am experiencing Family Violence and I am worried about my ex partner seeing the Children. What should I do?
The Family Law Act has was amended in July 2012 which resulted in the Act having a more definitive definition of family/domestic violence and providing examples of what family violence is.
The Act makes it very clear that you do not need to experience physical violence to be a victim of family violence. Emotional abuse and simply being fearful of your partner or ex-partner may constitute family violence.
If you are currently experiencing family violence or were in a relationship of domestic violence then it is very important to speak to a Solicitor as soon as possible.
It may be advisable not to allow the other parent any time with the children and you certainly should not feel as though you have to put yourself in a position of facilitating that time initially.
The Family Law Project is experienced in dealing with victims of family violence through specialised domestic violence training and also from working with many victims of domestic violence. We will ensure that you are well supported throughout the family law process and will assist to refer you to other service providers. We can discuss protection orders and put in a plan to ensure the safety of you and your children.
Family Violence & Court Proceedings?
If it has been established or suspected that one parent has been violent towards the other parent or the child then the Court is likely to have some reservations about that parent having care of the child.
One of the aims of the Act is to protect children from physical and psychological harm and abuse. This includes children being exposed to family violence (ie where they have witnessed family violence). The definition of Family Violence extends to psychological harm where one party may have been threatening, coercive or controlling of the other party. The Court will be concerned if a child has overheard or witnessed any of the above.
If you have concerns about the welfare of your children then it is still best to talk to a family lawyer before agreeing to any supervised time. Often you may feel pressured to agree to a third party to supervise time but in some circumstances you may run the risk of the other parent not returning the children or putting their welfare at risk. It is not a good idea to supervise time yourself if you are fearful of the other parent.
If your matter has reached Court stage and the Court has concerns about the safety of a child (for example, where there has been family violence) then the Court may make an Order for supervised time. At other times it is also ordered where the parent has not spent time with the children for considerable time. Time may be supervised by a friend/ relative or by a Children’s Contact Service. Supervised time at a Children’s Contact Service is usually capped to a number of visits. They will often provide an observation report following a series of visits which may be drawn to the Court’s attention.
What is an Independent Children’s Lawyer?
It is common for an Independent Children’s Lawyer (ICL) to be appointed in more complex matters which are before the Family Law Courts. The ICL must act impartially and assist the Court to reach a decision which they believe is in the best interest of the children.
The ICL will often meet with older children to explain the Court process. They will work with professionals such as family consultants to relay to the Court the wishes of children. They are not bound by instructions of children so can make recommendations that are against the wishes of a child.
The ICL will also speak to medical professionals and schools to gather relevant information about the children.
If the Court makes an order for the appointment of an ICL then the parties are each responsible for payment of one half of the cost of the appointment. If you are in receipt of a grant of Legal Aid then that cost is generally waived.
Shaya Lewis-Dermody, Director of The Family Law Project, is a qualified Independent Children’s Lawyer and often appointed by the Court to represent children. You can find the link to our You Tube channel on our website and watch her video in relation to the role.
What is a Family Report?
The Family Law Courts also frequently make an order for a Family Report or an Expert Report. Family Reports are prepared by family consultants employed by the Court and are prepared at no cost to the parties. The family consultant will spend considerable time with all parties and the children of the relationship. A report is then prepared, with recommendations, and released to the Court.
The report writer will have access to all documents that have been filed by the parties.
An Expert Report is prepared in more complex matters. It is prepared by a private professional and generally paid for in equal shares by the parties.
If a matter proceeds to final hearing (Trial) then the family consultant or expert will typically attend to give evidence in relation to their report. Whilst the Court is not bound by the recommendations by the report writer, the report will hold a certain amount of weight. The report writer will need to give evidence and be cross examined at the final hearing if your matter proceeds to Trial.
Determining the Best Interest of the Child
What does the Court consider when attempting to detainee the best interest of the child? Aside from the Family Report (if relevant), the Court will be considering the factors as set out in Section 60CC of the Act. That Section sets out the primary consideration being the right of the child to have a meaningful relationship with both parents. It also sets out the need to protect the child from psychological and physical harm and from Family Violence.
The Court will otherwise consider the following:
- the wishes of the child (depending on their age) which may be ascertained via the Family Report writer/Expert;
- the child’s current relationships;
- the willingness of the parents to encourage the child’s relationship with the other parent;
- what the existing living arrangements have been for the child;
- cultural issues;
- separation of siblings;
- any family violence issues; and
- the practical effect of any orders made (ie the living arrangements of the parties and the distance between their residences)
Whilst the Act does not say so, we generally find that it is usual for a child to be removed from any longstanding arrangement (the “status quo”).
It is very rare for a child to have to speak to a Judge or to attend Court and as a general rule that would be considered inappropriate.
The Court will generally not be concerned about the reason for separation or who was at fault for the breakdown of the relationship.
Can I Change my Child’s Name?
We are often asked by parents if they are able to change their children’s names. This is a particularly common question if one parent has had very little involvement with the child.
Change of name requires both parents consent if both parents are on the child’s Birth Certificate. If one party refuses to execute the necessary consent documents then an application is required to be filed in the Family Law Courts.
If you don’t know where the other biological parent is then we can assist with an application to dispense with service on that parent.
If you cannot locate the other parent or if the other parent does not consent to the name change then the Court will take into considerations factors including: the relationship of the non- consenting parent, the reason for wanting the name change and the wishes of the child.
Can I get a Passport without the other Parent’s Consent?
If there are already parenting orders in place then you are unable to leave the country without the permission of the other parent/interested party.
A Passport Application requires the signature of both parents so it is always best to try to have the other parent sign the application if you do not have concerns around your safety. If you do not know where the other parent lives or if they refuse to sign the Application then you can apply to the Family Law Courts for an order permitting you to be the sole applicant for a Passport.
In making such an order, the Court would consider factors such as: whether there are any parenting orders or plans in place, the child’s relationship with the other parent, the age of the child, if you are travelling to a non-Hague Convention (re child abduction) country and whether you are likely to return to Australia. You would have to address the Court on these issues even for an older child who has never met the non- consenting parent.
Remember that it is illegal to take a child overseas without the consent of the other parent or an Order from the Court. Even on that cheap all inclusive trip to Bali!
I Suspect my Partner will take the Children Overseas without my Consent. What should I do?
Stop reading this and call us immediately!
We can obtain an urgent Airport Watch List order in place if appropriate. An urgent Application is filed with the Court and emailed to the Australian Federal Police in Canberra who will notify Interpol. This generally precludes anybody being able to remove that child out of the Country.
Can I Relocate with my Children?
The answer to this question is very much dependent on your particular set of circumstances. The answer will be very different if you have an older child who has never met the other parent as opposed to a child who is currently spending regular time with the other parent or a child who is subject to a Parenting Plan or Parenting Orders.
The Court would consider factors such as the child’s relationship with the other parent, the reason for the proposed move, the age of the child, the distance of travel and any proposals that you have to maintain the child’s relationship with the other parent.
There has been frequent case law on relocation in recent years and changes to the Family Law Act placing an emphasis on the importance of children’s relationships with both parents can make it more difficult to seek permission to relocate a child. Either way, you will generally need to go through the Family Dispute Resolution process in the first instance.
Chat to a Solicitor about your unique situation to ensure that you receive relevant advice. Please ensure that you obtain advice before you relocate.
The other party is refusing to follow the Orders made by the Court. What can I do?
The Court will not monitor or oversee final orders. If there is a breach of the orders then the options are generally to instruct a Solicitor to write to the other party to place them on notice of the breach. Alternatively/ subsequently a Contravention Application may be filed. If you file a Contravention Application then the onus is on you to establish that the other party did not have a “reasonable excuse” to breach the order.
A Contravention Application is quasi criminal with penalties ranging from “make-up time” to imprisonment. That said, it is very rare for us to see imprisonment for breach of a final order.