Happy Kids

Co-parenting over School Holidays

 

Take time to Plan ahead:

 

Co-parenting during School holiday arrangements for the children can be hard .
School Holidays can be hard even in a non separated household.
Both parents may need to work and both parents may want to have time off with the children.
It is just as hard for the children, sometimes.
It’s a mistake to talk about “the children” as though they were a single unit rather than kids of different ages and personalities.
So to co-parent through the holidays, we have to find a way to satisfy the individual needs of the people involved.
It’s best if the discussions about holidays takes place in plenty of time before the holidays so that the holiday time arrangements can be worked out to everyone’s satisfaction.

 

Various Options for Holiday Time Co-parenting:

 

Parents can use a combination of vacation care, accrued annual leave and grandparents to get through the holiday break.
In Janet Baxter’s study of the Australian Institute of Family Studies, she noted that some kids have been staying home by themselves while their parents worked.
The statistics show that more and more families are using School holiday programs or ” vacation care”.
Whatever plan you make for your family, it is always best to do it with civility and avoid involving the children in any conflict.

Its extra stress for everyone if the arrangements are vague or uncertain. Once everyone knows what co-parenting arrangements are going to be in place, then the children and the parents can relax and enjoy their holidays.

 

What to do if you can’t agree:

 

If you and your ex partner can’t agree well in advance of the holidays, think about going to mediation. There you should  to try to resolve the issues with the help of a mediator or counsellor who is registered as a Family Dispute Resolution Provider (FDRP). If you want to find an FDRP, then click HERE  .

If that fails, then you can ask for a S 60(1) certificate from the Family Dispute Resolution Provider. You may have to go to Court to get arrangements for school holidays.  You will need to file a section 60(i) certificate with your application. Sometimes, if you see a Family Lawyer then the lawyer may first write a letter to the other parent to see if there is a possibility of agreement. We almost always try to resolve  matters this way. If there is urgency or the other parent has absolutely refused to engage in sensible co-parenting discussions, you may need to go to Court.

 

The Journey Brisbane Family Lawyers difference :

 

  1. 1. We offer fixed fees for a letter to your ex partner. We also can do fixed fees  for bringing an application up to the end of  its first day in Court.
  2. 2. Our clients have been able to get affordable representation by using our unique step in-step out process.  The clients then manage the case on their own in  between Court events, only calling on their lawyer for help when they need it.
  3. 3. We also travel to Rockhampton for the Federal Circuit Court and Family Court and do not charge for travel and accommodation in Rockhampton.

 

Just call and ask for a fixed fee quote, or email us or call for an appointment on (07) 38325999 ( for North Lakes, Strathpine and Brisbane City Offices.

We acknowledge using some information from the 2013 paper by  Janet Baxter of the Australian Institute of Family Studies.  familylawyer - Successful Co-ParentingYou can read it HERE .

familylawyer - Successful Co-Parenting

Top 10 Tips for Successful Co-Parenting

The term “co-parenting” is used to describe a situation where two parents work together to raise a child following separation, divorce or changed living conditions. Both parents maintain some type of shared responsibility, equal or otherwise, as a protection of the child’s right to continue to receive care and love from both parents.

Lynette Galvin, our Accredited Family Law Specialist and Family Lawyer, has seen lots of co-parenting successes. But she’s also seen co-parenting fails, including her own. Lynette understands the world of co-parenting because she lives it everyday as a stepmother. Therefore there’s no one more qualified to assist you in your co-parenting journey. Here are Lynette’s top 10 tips for successful co-parenting.

1. Do not relay messages through your children

Try to communicate directly with your ex-partner and avoid asking your children to relay messages on your behalf. Co-parenting is about working together, and if you show your kids you cannot talk directly with your ex-partner, you’re sending the wrong message. Furthermore, asking a child to relay a message could be somewhat distressing to the other parent. Messages such as “Mum says you should be putting us to bed earlier”, put a lot of pressure on them. Protect your child’s comfort and deliver the message yourself. If you primarily communicate through text or email, remember that tone and intention can often be misconstrued.

2. Keep conversation to the point and business-like

familylawyer - Successful Co-Parenting

While it’s important that you speak directly and often to your ex-partner, it’s also important to keep things brief and matter-of-fact. This is especially so if your conversations tend to lead to an argument.

Stick to the facts and what directly impacts them or the kids. Avoid rolling your eyes, a disbelieving shake of the head, tutting, or any other gesture that can be just as hurtful as name calling. If you do slip up, apologise immediately. You’re in the business of taking care of your children, so try to speak or write to your ex-partner as if they are your business partner. That means being cordial and respectful.

3. Only speak positively

When you make a conscious decision to speak only in positive terms about your ex-partner (at least in front of the kids – we know some venting is needed), you allow your kids to grow up with feelings of respect and admiration. These feelings are crucial for their wellbeing and comfort.

The only person you have control over is yourself. Even if your ex-partner doesn’t show the same courtesy by speaking positively of you, try to take the high road. Learning to ignore a badmouthing ex-partner will result in a big family payoff.

If your ex-partner has something bad to say, be careful with your response. Explain to your kids that sometimes people say things they don’t necessarily mean when they’re upset, and then advise them that you’ll talk it over in private. Whatever you do, don’t lash back with name calling. Model the best way to respond to difficult situations with maturity and integrity and your children will respect you for it.

4. Be considerate

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Even though you are no longer together, you are allowed to care for your ex-partner. That said, you need to give your ex-partner time to understand and process the breakup. You might be feeling okay about things but how people deal with a break up of relationship varies enormously. Your ex-partner might be hurting and you should consider this and allow them time to get over you. Be polite and respectful and if they don’t want to talk at first, don’t push. Explain that you are open to communications any time they are ready and sincerely ensure that if there is any time they would like to talk that you’ll be there.

Being considerate also includes letting your ex-partner know about school functions, being flexible with schedules and asking them for their opinion. Recognise that working together means putting your kids first and that it requires sacrifice. Not easy for either of you, but necessary.

5. Back off when it’s not your time

It’s fine to want to know what your kids are up to when they are with your ex-partner and it’s also okay to try and coordinate schedules. Nevertheless, you must try to avoid intruding on your ex-partner’s time with the kids. Avoid scheduling children’s activities on the other parent’s time without clearing it with them first and don’t call or text too often. Pick your battles and don’t pull up on every small component of parenting you would have done differently. If your ex-partner took the kids to McDonalds or sent your son to a birthday party in a dirty T-shirt, is it really the end of the world?

6. Refrain from exposing your fears

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Talking to your kids about emotions and helping them to understand what effect they can have on others is important for building a healthy emotional vocabulary. Crying is a natural and normal thing to do, but it has its time and place. Following a relationship breakdown, kids are feeling scared. Seeing you cry teaches them that you care and that the breakup matters, but if you are crying everyday it can be quite frightening for your kids. Children need to know that everything is going to be alright, even when you’re not sure it is. Teach them that being upset is okay, but when you feel the waterworks coming on repeatedly, slip into the shower to hide some of your pain.

7. Think about the future

There are bound to be times when it all seems too hard. You will want to scream and shout and declare that you are “done”. But think about the future. Imagine your child’s graduation, their wedding, or the day they give birth to their first child. If you show unreasonable behaviour now, will it prevent you from standing beside each other on these special occasions? If you’d like nothing more than to make your child happy on these momentous days, take a deep breath and keep calm.

8. Leave decision-making to the parents

Whether you’ve entered a new relationship or your mother is on your case about needing “more time”, “less time”, “more money” or a “cleaner home”, keep parenting decisions between you and your ex-partner. Other people are entitled to show some angst, but their angst shouldn’t impact how you choose to co-parent. You and your ex-partner are the only parents involved. If someone else doesn’t respect that, show them how strongly you feel about the matter.

9. Never air your grievances on Facebook

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Unlike a private conversation, aired grievances on the internet remain there forever. Something you write in haste or after a few wines might seem harmless at the time, but it can haunt you for years to come. Keep the relationship between you, your ex-partner and a few close confidants. If you need to vent, see a professional. No good will come from a vent on Facebook. We promise you that.

10. Make the most of your free time

When the kids are going to your ex-partner, make a plan! Sitting around and moping will only highlight the negative aspects of the situation, leading to hurt feelings. Plan to catch up with friends, go watch a movie, do the housework or go to the gym – any activity that will keep you busy and gives you some all important “me” time.

Think forward with Journey Family Lawyers

Lynne’s biggest piece of advice? Foster positive transitions for yourself, your ex-partner and your kids by engaging with Journey Family Lawyers Brisbane. You’ll receive specialist care so that you can work together harmoniously while keeping costs down.

Consent Orders

Consent orders are a very effective way to record an agreement between two separating people. Journey Family Lawyers  are experts at helping you reflect your agreement in a document that is legally binding and protects your future. The basic forms for Consent Orders is available from the Family Court website  for children’s matters. While the Application I would recommend getting the orders themselves drafted (or at least checked over) by a Solicitor.

Property settlement by Consent order is possible too. It is a bit harder to do though. First you should be certain that your orders are fair because the Court has to approve them.  Then just fill out the Application and get your orders drafted. We are very good ( if we do say so ourselves) at getting instructions and quickly formulating the orders that reflect your agreement that will see you protected and your case resolved.

Read our property law notes here and read our resources to get a better idea of how consent orders work. Call us to speak to a lawyer for free.

Hints to help you share time with your kids this Christmas

Christmas Holidays are a time when many people have concerns about arranging contact (or, “time with”) their children and the main resident parent.

For the most part, people are able to work out common sense ways to share both the holidays and the actual Christmas period. Sometimes, however, people get into disputes over these issues

For people who have Court Orders, and who have already survived one Christmas Holiday period, things will generally fall into place.

For others, though, especially if it is the first Christmas since separation and there are no Court Orders, it seems difficult to know how best to deal with everybody’s wishes. This article is for people in that situation.

The main issue is how to share Christmas Day. Some separated couples would rather avoid seeing each other on Christmas Day if at all possible. For them, an arrangement that sees the children with one of the parents on Christmas Eve and the other parent on Christmas Day seems to be a compromise that has worked for many. These people then alternate the arrangements so that, whoever missed out on having the children on Christmas Day in the preceding year can have them the next year.

Other people simply can’t bear the thought of not seeing their children on Christmas Day and for them somewhat more complicated arrangements need to be made. We usually start by finding out from our clients if their family is one that places great store on Christmas morning, or Christmas lunch or some other family celebration on Christmas afternoon.

Generally, one finds that during the marriage, the family has spent either the morning or the afternoon of Christmas Day with the Paternal Grandparents and the other part of the day with the Maternal Grandparents.

Generally, contact (or “time with”) arrangements then would follow this pattern so that the Mother, for instance, would have the children for Christmas morning to enable the children to open the presents but they would go to their Father’s for Christmas Lunch at, say, 1:00pm.

As long as nobody gets involved in any rows, you will find that children adapt very readily to the idea of double Christmas presents and double dinners!

I wish everybody a safe and happy Christmas and look forward to providing you with more advice and information in the New Year.  Regards, Lynette

P.S.  Journey Family Lawyers  is open all over Christmas except the Public Holidays and Christmas Eve to help answer your queries.

 

coparenting top 10 tips

Communicating with your child’s other parent about schools

Parent often cannot agree over which school their child should attend.

If you are having those sorts of issues, the first thing to remember is that you need to plan to get an agreement, or a Court Order if necessary, in plenty of time before the child is due to start at the school.

This is the time of year that kids are getting ready to go to school again. It is a stressful yet exciting time, but even more stressful and upsetting for those kids whose parents are arguing about what school they should go to.

The key to avoiding disputes is to discuss your expectations with the other parent as soon as possible. In these times of shared parenting, it is inevitable that one parent may have to travel more than another. Choosing a school that is absolutely equal distance between the two homes is impossible usually.

Also there are parents who can’t agree on whether their child should attend a State School or a Private one, or even what religion the school should be. This is not something that can be decided on at the last minute. Kids need plenty of time to prepare themselves mentally for school, and they need to know which school they will be attending. If they hear parents arguing about whether one school is better than another, they may become anxious or even feel that one school may be bad for them. So get it out of the way the year before so you have time to get professional help through joint counselling, mediation or, if absolutely necessary, through the Courts.

We  don’t usually recommend going to Court over something like school choice though, as it is a parenting choice really, and the  Court should not be put in a position of choosing your child’s school. Of course the Court will if it has to, in order to give some certainty for the child, but the better option is for the parents to learn how to compromise and negotiate as a useful tool for navigating the other parenting decisions that they will have to make regularly for the child in the future.

Remember that Family Dispute Resolution is available to you and is, in fact compulsory before you bring any application to the Courts about your children.

Lynette

Divorce and Separation free advice blog

This website is for people who are facing Divorce or separation and want to find out as much as they can to help them through. My firm is Journey Family Lawyers, who are specialist Family and Divorce Lawyers in Queensland. They have their own website at www.journeyfamilylawyers.com.au.  This is a divorce blog where you can comment and ask questions about your marriage property settlement or children custody problems.

I hope you can find the answers to your divorce issues here, if not please email us at enquiries@journeyfamilylawyers.com.au or comment on the blog  or phone us on (07) 3832 5999 and we will get back to you so you can know where you  stand. Don’t forget we offer free 10 minute consultations by phone too, or one hour for $143.00. I am still slogging away on my book, Divorce a new users guide, and will post bits of it from time to time.  The good news is that the book should be ready for publication mid 2013, if I can keep up the pace of writing, that is!

Regards Lynette Galvin

Children & Separation – Important Information

When a marriage breaks down, the parents generally have a lot of questions and issues about the situation and what happens to the children. This article tries to explain the more common issues and offer suggestions as to how best to deal with them. If you have other questions feel free to email us or call one of our Journey offices for a free ten minute consultation.

We have just separated, what do we do now?

It is best for everyone, particularly the children, if parents can amicably agree to parenting arrangements. You may wish to seek legal advice before making any decisions. Generally each case is a bit different and you are probably best to get some legal advice about your particular situation before agreeing to anything.  At this point you may not need to engage a lawyer but you should find out where you stand. At Journey Family Lawyers, we offer an initial consultation at a flat rate of$143. The consultations generally take at least an hour and we can discuss possible arrangements for the children. There is a lot of miss-information around so it is better to get your information from the experts so you do not make a mistake.

If you feel comfortable and it is safe to do so, the next step should usually be to discuss what you propose the parenting arrangements to be with your Ex. You could do this by email, telephone or in person. Remember when discussing any arrangements that they must be in the child’s best interests.  You should discuss the following matters:

  • Where the children should predominately live and what time they spend with the parent they don’t live with.
  • Changeover arrangements – where should changeover occur, who drives where, what time changeover will occur. Take into account school or public holidays if you decide changeover should occur at a child’s school.
  • Times for the child to contact each parent by phone when they are in the care of the other parent.
  • Arrangements for special days, including Christmas, Easter, Mother’s Day, Father’s Day and birthdays.
  • Any important decisions needing to be made including schools the children attend, medical decisions etc and how those decisions will be made (i.e jointly or by one parent – see Parental Responsibility below).

If you can agree, you can record the agreement in either a parenting plan or a Court Order.  See below for information about these options.

If you cannot agree or if there is an urgent matter involving relocation or risk of harm, the next step is to see a solicitor to proceed with either mediation or applying directly to court (in urgent matters or where there are special circumstances).

If you have primary care of the children, you should also contact Centrelink and the Child Support Agency to determine your eligibility for child support and Centrelink payments such as the Family Tax Benefit or parenting payment. The Child Support Agency has an excellent website for obtaining more information about entitlements and obligations.

Best interests of the children

In parenting matters in Australia, the Family Law Act says that the best interests of the children is the deciding factor when determining parenting arrangements following separation. It is important to understand that all decisions you make regarding these arrangements should be made with the child’s best interests in mind. Under the Family Law Act (in section 60CC), there are several factors listed to consider to decide what is in the child’s best interests. The most important factors are protecting the child from harm and ensuring the child has a meaningful relationship with both of their parents. Other factors include the views of the child (given weight according to their age and maturity), the relationships the child has with each of the parents and other family members, the capacity and participation of each parent in parenting the child and spending time with the child, the effect of any changes to the child’s circumstance and the practical difficulty and expense of any proposed arrangements.

Mediation

Mediation is a compulsory step for parents who cannot agree on parenting arrangements before the matter goes to Court. Parents who attend mediation to resolve disputes will be given a certificate (referred to as a section 60I certificate). You need this certificate to file an application to Court, unless the matter is urgent (risk of harm to the child or relocation by the other party) or you are unable to attend mediation for some other reason (do not know where the other party is, the other party refused to attend mediation).

There are 3 general options for mediation:

1. Private Mediation

A private mediation is run by a Family Dispute Resolution Practitioner, generally a solicitor. You would need to pay the fees for the mediator and generally for your solicitor. We can give you an estimate of the costs involved depending on the mediator chosen.  The benefit to a private mediation is that it can be arranged quickly, you have your solicitor with you (if you wish), the parties are generally better prepared for mediation and in many cases, is more likely to result in an agreement than Legal Aid Conference or Relationships Australia. Normally your lawyer can arrange that for you though of course, both parties need to be agreeable and you need agreement as to who pays the cost of the mediation.

 2. Legal Aid Conference

If you are eligible for Legal Aid, a legal aid conference is a good option. You will have a solicitor present to advise you through the process. The mediation would either be by phone, from our office; or at the Legal Aid office in Caboolture, Maroochydore or Brisbane. The conference can be run as a shuttle conference, where you will not need to speak to or see the other party if safety or fear of the other party is an issue.  Legal Aid may require a contribution on your behalf if you are assessed as having the means to pay, but otherwise a Legal Aid Conference is free. Legal Aid will also pay for any agreement to be made into a court order should the parties agree to it.

3. Relationships Australia mediation

RelationshipsAustraliaand other similar community organisations conduct mediation. The mediator is not a solicitor and you are not permitted to have a solicitor with you. This is a good option if you cannot afford a private mediation but are not eligible for a Legal Aid conference. It is best to seek legal advice prior to attending mediation through Relationships Australia so you are aware of where you stand. Contact Relationships Australia Queensland for any enquiries about fees and availability.

Parenting Plans or Court Orders?

Once you reach an agreement with your ex you can formalise it in several different ways. A parenting plan is a written agreement reached between both yourself and your ex and is signed by each of you.  A parenting plan can deal with many aspects of parenting including, where the child shall live, when the child shall spend time with each parent, communication between the parents regarding the child, authorities for parents to access school or medical records and many other things.  Whilst a parenting plan creates obligations between the parents to each other, it is not legally binding. This means that it cannot be enforced by the court. If you think there will be problems later on with the other parent keeping to the agreement, the a parenting plan is not suitable.

A Court Order is a legally binding document which creates legal obligations on each parent.  If both parties agree to enter into Court Orders then this is what is called a Consent Order.  A Consent Order is legally binding and if either party does not follow the Order then the other person can take them to court for breaching or contravening the Order.  There are serious ramifications for breaching Court Orders.

We generally recommend Consent Orders. This is because they are legally binding; as well, you have proof as to the legal arrangements with the child.

Court Process

If you have tried mediation or if the other party is not cooperative, and you are faced with the likelihood of going to court, there are a few things to keep in mind.

Firstly in order to apply to court you are required to prepare and file documents in the court advising of what orders you are seeking and the background of the dispute.  Once you file these documents you will be given a first court date.  This court date is generally between two to three months after you file the material.  You then serve a copy of your material on the other party who then responds to this, generally before the first court date.

On your first court date, the court does not make final parenting Orders.  They are only able to make interim (or short-term Orders). These Orders include time arrangements and also cover procedural issues.  For example, at this point the court may order that a Family Report or a Psychiatric Report be prepared or that an Independent Children’s Lawyer be appointed.  These reports are designed to assist the court in making an informed decision as to what is in the best interests of the children.

A Family Report is a document that is prepared by an independent Family Consultant. These people are generally social workers or psychologists and are experts in the field.  The Family Consultant’s role is to meet with the parents and the children, and any other significant people and to make recommendations about what is in the child’s best interests.  This report is a valuable piece of evidence for the court and is generally considered very important by the Judges.

An Independent Children’s Lawyer is a lawyer who is appointed to represent the children’s interests only.  They generally do not meet the children or take instructions from the children, however they undertake a forensic role in investigating what is in the children’s best interests.   This could include arranging for experts to do reports (ie Family Reports or Psychiatrists or others), issuing subpoenas (to get records from organisations such as the Police or DOCS) and making recommendations to the court based on this information.

Once the necessary investigatory steps have been taken and reports obtained then if the parties are still unable to agree on an outcome, the court will have a trial.  At the Trial both parents are required to give evidence in court (the children are not), along with any experts or other witnesses.  At the conclusion of the trial the court determines what is in the children’s best interests and makes an Order.

The court process can be lengthy and if your matter requires a trial it can take a long time to get to that point. What is encouraging however is that 95% of Family Court matters resolve without the need to go to Trial.  At any point during the Court process, if the parties reach an agreement you are able to enter into Consent Orders and therefore no longer continue through the system.

Parental Responsibility and ‘shared care’

The term “equal shared parental responsibility” is one used very regularly in family law.  Equal shared parental responsibility refers to the responsibility for making long-term decisions for the child. Long-term decisions include schooling, religion, medical procedures or changing the child’s name, amongst other things.

The term, “equal shared care” refers to where the children live; in the shared care arrangement, it means 50/50 or equal time living with the each of the two parents.

There is a presumption under the Family Law Act that both parents shall have equal shared parental responsibility unless there is family violence, child abuse or some other special reason not to do so.

Whilst many parents who are separated do not get along particularly well, this does not mean they cannot make decisions jointly and therefore in only a small number of matters does the court give one parent sole parental responsibility.

If the court orders that the parents should make long-term decisions jointly then the court must consider whether a “shared-care” arrangement would work (meaning an arrangement whereby the child lives with each parent 50% of the time).  In many circumstances a shared-care arrangement is not in the children’s best interests and in these cases the court then considers an alternative arrangement. For instance, a common arrangement is for the children to live with one parent and spend every second weekend with the other parent, plus one night during the week, plus half school holidays. If you are not sure what is appropriate or whether what you are proposing is reasonable, you should consult a lawyer.

Location and Re-location

Where the children live is a long-term decision which generally needs to be made by both parents.  If you are considering relocating, there can be very serious ramifications to this if you do it without the other parent’s written consent or without a Court Order. If you are considering relocating we strongly recommend that you obtain legal advice before making this decision or taking any action. If you do not do things properly, you can not only make it worse for yourself but in some instances, have the child taken away to live with the other parent.

On the other hand, if the other parent has moved away with the children and it affects the children’s ability to spend time with you, it is important to act quickly. In some instances you can obtain a recovery Order requiring the other parent to return the children, however if you delay this and do not make this application straight away, you are less likely to be successful.  We recommend that you get legal advice straight away if you are faced with this situation.

Domestic and Family Violence

Sadly in many families children are exposed to domestic and family violence.  This is treated very seriously by the courts.

If you are experiencing domestic violence, which includes physical and psychological abuse, harassment, intimidation, threats or control then you need to consider whether you should apply for a Protection Order.  A Protection Order is an order made by theMagistrates Courtand can impose a number of obligations on the offender, this includes that they must be of good behaviour to you and not commit domestic violence, that they may not be able to contact you or to go to your house or workplace, and many other conditions.  You are also able to apply to have your children or other relatives or associates named on the order as protected persons.

A Protection Order is serious and if the other person breaches a protection order and is convicted, it is a criminal offence.

You are able to apply for a Protection Order yourself, however it is often a good idea to get legal advice and assistance so that you have the best chance of success.

Domestic and Family violence is considered in all parenting matters before the Family or Federal Magistrates Courts.  If there is domestic or family violence the court is required to consider the impact of this on any parenting order that is made.

Remember however, that the fact there is domestic violence between the parties, does not mean the children will not be allowed to spend time with the other parent. The Family Law courts look at each case on their merits (violence against the children by a parent is however taken very seriously).

Legal Aid

If you have a low income or are in receipt of a health care or pension card and you have a substantial issue in dispute, you may be eligible for legal aid funding.

You can make an application for Legal Aid to assist with your parenting dispute or your domestic violence matter.  If you are granted Legal Aid for your parenting matter this will often be to attend mediation (or a Family Dispute Resolution Conference as it is referred to).  If this is unsuccessful you may then obtain funding to go to court (apart from in exceptional circumstances where you may need to apply straight to court).

In some circumstances although you are awarded a grant of legal aid funding, you may be required to pay an initial contribution. This is based on your income and is assessed by Legal Aid.  We can assist you with applying for Legal Aid funding as we are a Legal Aid preferred supplier.

You can apply for Legal Aid either through Journey Family Lawyers or directly through Legal AidQueensland(you can request that your matter be assigned to our firm).

Helpful Organisations

  • Legal Aid – 1300 65 11 88 – for assistance with funding legal proceedings;
  • Relationships Australia – 1300 364 277 – can arrange counselling or mediation in some circumstances;
  • DV Connect – 1800 811 811 – provide you with support and assistance in circumstances where you have experienced domestic violence;
  • Centrelink – 136 150 – assist with parenting payments and other income-tested pensions;
  • Child Support Agency – 131 272 – assess child support liabilities and can collect this on your behalf.
Happy Kids

Children and Recovery

Urgent Applications

We all can appreciate that the stress of a marriage breakdown can take its toll on not only the parents, but most importantly the children involved. From our experience, most people can come to suitable arrangements in regards to parenting matters without the Courts intervention which in turn provides less stress to all involved. However, unfortunately there are parents who take the law into their hands without really acknowledging the serious repercussions. In most circumstances the motive behind their actions is to control the other parent and disregarding what really is in the best interests of the children.

This paper will deal with urgent applications, in particular, recovery orders and what is known as “PACE” alert applications.

Recovery Order

In some circumstances immediately post separation, a parent will “run off” with the children without any parenting orders in place or any proper arrangements in relation to the children’s care, welfare and development.

What is a “Recovery Order”?

A recovery order is defined in s67Q of the Family Law Act 1975 which is essentially an Order from the Court requiring the children to be returned to a parent of the child, a person has parental responsibility in relation to the children or to a person who has an existing parenting order that provides for a child to live with or spend time with that person.

This therefore extends to not only the parent with whom the children are currently living but to parents who by law have parental responsibility for the children.

In the event that a parent absconds or removes the children from the children’s usual surroundings, the other parent will usually have standing to bring an Urgent Application to Court for a Recovery Order. If the Court is satisfied that the children have been removed unilaterally by that parent, the Court can Order that parent and the children to return by a certain type (usually within 7 days) and in the event of non-compliance, that a recovery order issues. This will involve an Order to authorise or direct a person or persons, such as State Police Officers and the Australian Federal Police to take any appropriate action to find, recover and deliver the child/ren to the other parent (usually the parent who brought the Application).

A further order is usually sought in the Application to prohibit that person from again removing or taking possession of the children again. In the event that a parent again removes the children, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the children.

Who can apply for a Recovery Order?

It is a general misconception that only the biological parents of the children can bring a recovery order application. Persons who have standing to bring a recovery order application include: a person who the child/ren live with, a person who the child/ren spend time with, a grandparent of the child, a person who is concerned with the care, welfare and development of the children (even where there is no parenting order in place that provides for this arrangement).

After a couple separate, it is understandable that both parents become very emotional and make wrong decisions that can, and in most circumstances, will have detrimental effects that ultimately affect the children. Before separation, it is wise to discuss the arrangements regarding the children to prevent any applications of this nature being brought by the other parent.

How do I apply for a Recovery Order?

You should first seek legal advice from one of our dedicated family lawyers. We can evaluate the situation for you and advise you as to what avenue you should proceed with.

You should bear in mind the legislative changes that have been introduced in regards to parenting matters. It is now a requirement that both parents participate in Compulsory Family Dispute Resolution and make a “genuine effort” to resolve the dispute before commencing any Application in Court regarding Parenting matters. If negotiations are unsuccessful, and provided the parties made a genuine effort to resolve the dispute, then a s60I certificate will issue. This certificate is required to be attached to an Application for Parenting Orders to show the Court that the parties have in fact attended Compulsory Family Dispute Resolution.

However, there are exceptions to the requirement of a s60I certificate. The exceptions are:

  • Where the matter is urgent;
  • Where there is family violence;
  • Where there is child abuse;
  • Where there is a risk of family violence and/or child abuse; and
  • Where it is not practical for one party to attend.

It is also now a requirement that if a certificate is not filed with an Application, that a further Affidavit be completed to state the reasons why a certificate is not attached and the exception that is relied upon.

In the event that we believe you should commence an Application for a Recovery Order, we would seek an urgent hearing and rely on the exception of “urgency” to proceed without the s60I certificate. We are of the view that you should include in your affidavit material that you are prepared to attend compulsory family dispute resolution at a later stage (usually after the children are returned).

What is the process?

Firstly, you should meet with one of our experienced family lawyers for advice.

We will then prepare your Application for a Recovery Order and obtain a statement from you regarding the relationship history, the parenting arrangements since separation, attach any orders that have been contravened and state the urgency of the matter.

We will then ask for an urgent listing of the matter and in the writer’s experience (the Court will usually list the matter, if it is in fact considered urgent, within approximately 7 days).

In the event the other parent’s location is known, then the Court will require that the other parent be served with the Application to allow them natural justice to respond to the Application. However, if the address of the other parent is not known, then the Court will usually list the matter to proceed “ex parte”, which essentially means without the other parent being heard or present at the hearing.

Contact your Journey Family Lawyer to know where you stand.

“PACE” Alert Applications

Given that Australia is a very multicultural country we can all relate to the ever-increasing number of multicultural relationships. This often raises the serious concern that a former spouse may abscond with the children to another country without the other parent’s permission.

We strongly advise you to receive legal advice as soon as possible if you are concerned that your children may leave the Commonwealth of Australia without your permission.

You can appreciate that different countries have different Family Law legislation and can cause serious dramas where there are significant disputes in relation to where a child or children should live. To ensure there is some consistency regarding the laws governing child abduction, there is what is called “The Hague Convention”.

The Hague Convention is a treaty between countries regarding the important issue of international child abduction. Australia is a member of the Hague Convention.

What countries are members of “The Hague Convention”?

The list of Hague Convention countries is subject to change. However, the updated list (as at 1 January 2013), can be found here. 

What are the Requirements for the Hague Convention to Apply?

The Hague Convention will only apply to countries that have voluntarily signed up to the convention. There are three important elements that need to be proved for the Convention to apply and they are:

  1. The child must be under 16 years of age;
  2. The child must be ordinarily resident in a country (that has signed up to the convention); and
  3. The removal of the child is unlawful

Although a Country may be a signatory to the Hague Convention, I’m sure you will agree that if there was a process that could prevent the children leaving in the first place, you would definitely exercise that option. Well, there is and that process provides for a child or children to be entered onto an Airport Watch List by an Order of the Court.

Airport Watch List

Essentially, the Airport Watch list is a system designed to prevent a child/ren from being removed from outside of the Commonwealth of Australia without the Consent of the Court or the other parent. It is effectively an injunction retraining a person from leaving the Commonwealth of Australia with the children. In the event, that a parent removes or attempts to remove the children from the Commonwealth of Australia can be sentenced to up to three (3) years in prison.

I have concerns that my children may be removed from the Commonwealth of Australia without my consent – what can I do?

First, you need to seek urgent legal advice from one of our experienced family lawyers. We can prepare an urgent application to the Court asking that the names of your children be placed on the Airport Watch list. Of course, the Court will need to be satisfied that there is a serious risk of removal of the children from outside the Commonwealth of Australia. These types of Applications will usually proceed ex parte. This is because the best interests of the children are the Court’s paramount consideration and given the recent family law amendments, there is now a presumption of equal shared parental responsibility and the children do have a right to have a meaningful relationship with both parents.

If a Court is satisfied, the Court will make an Order by directing the Australian Federal Police to place the name of the children on the Airport Watch list.

What if my former partner and I consent to the children temporarily travelling overseas but their names are still contained on the Watch List?

The children’s names may only be removed from the Airport Watch list with a Court Order. That Order will discharge the Order or the Specific Paragraph which initially restrained the party from removing the children in the first place.

The Court can make Orders which will allow the children to travel for a certain period of time with one of the persons concerned. We advise that you should have these details organised with your legal representative.To know more, please do not hesitate to contact your Journey Team to know where you stand.
– Journey Family Lawyers.

Grandparents have rights too

Over the past decades grandparents have been called upon to look after their grandchildren fulltime in a way they could not possible have imagined they would.

Often their own children have been lost to drugs or are in unsuitable environments for raising children. Sometimes people agree that the grandchildren would be better off with their grandparents, but sometimes there are heart rending disputes for the sake of the children.

Our firm has a significant track record for understanding and resolving disputes between grandparents and children, and do not shy away from initiating applications for grandparents to spend time with their grandchildren also. If you tried elsewhere and failed to get the legal support you need, or simply need to have someone assess your situation please call or email us, and we will do our very best for you.

The Journey to Equal Time

Introduction

More and more cases coming before the court now involve parents asking the Court for them to be able to spend equal time with their children. In most of these cases the other parent will be asking that the other parent be permitted to be able to spend only ‘substantial and significant’ time with the children. Both of these scenarios involve more than the traditional alternate weekend arrangements which are now considered, in most cases, obsolete. In all of these cases the Courts must apply newly legislated principles to each factual scenario. These principles were first handed down by the Australian legislature on 1st July 2007, and now, more than twelve months later, most lawyers can tell you, with a reasonable degree of certainty, whether or not you will be successful in seeking ‘equal shared care’ or ‘substantial and significant time’.

What happens when you first separate?

In a lots of cases after parents separate, they will make informal arrangements with one another about the time (and communication) each of them will have with their child/ren. Disputes about time and communication can often occur immediately after separation, or some months or years later. Parents then find themselves in a position where they are uncertain about their rights and obligations under the law, and in need of legal advice about what to do. Parents often do not know how their dispute would be resolved by a Court and how much time a Court would find they should spend with their child/ren.

1st July 2006 Amendments to the Family Law Act 1975

On 1 July 2006, the law changed with respect to parenting matters with the coming into effect of the Family Law Amendment (Shared Parental Responsibility) Act 2006. A new formula was put into a legislative framework for determining the best interests of children. That framework is set out below.

1st July 2007 Amendments to the Family Law Act 1075

On 1 July 2007, there was a further requirement put into law that people in dispute over parenting matters must attend a compulsory family dispute resolution service (for example mediation) to resolve their dispute. People (who don’t already have a Court Order) no longer have the option of going straight to Court, except in very limited circumstances. While attending at that mediation there is a further requirement that you make a genuine effort to resolve the issues in dispute. Only then will a certificate be issued enabling either party to commence proceedings in the Federal Magistrates Court of Australia or the Family Court of Australia should matters not resolve at the compulsory family dispute resolution service.

Purpose of the Legislation

The purpose of the changes to the Family Law legislative framework are to ensure that the best interests of children are met by:

  • Ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent possible.
  • Protecting children from harm.
  • Ensuring children receive adequate and proper parenting.
  • Ensuring that parents fulfill their duties and meet their responsibilities concerning their children.

Certain principles underly the amendment of the legislative framework and those are:

  • That children have the right to know and be cared for by both parents.
  • That children have the right to spend time with both parents.
  • That parents jointly share duties and responsibilities concerning their children.
  • That parents should agree about future parenting of their children.
  • That children have the right to enjoy their culture with people who share that culture (in this instance this particular principle is not terribly relevant).

How the Court Determines What is in a Childs Best Interests

What does the Court take primarily into consideration?

The primary considerations for determining what are in a child’s best interests are as follows:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

What other considerations are there?

When the Court is determining the best interests of children, it will consider the following in addition to that above:
any views properly expressed by the child;
the nature of the child’s relationship with each of the parents and other persons of significance (such as grandparents);

  • the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (on your instructions it appears that the Mother of the children is refusing to any way facilitate your relationship with your children since separation);
  • any change in the child’s circumstances;
  • the practical expense of the child spending time with the parent that the child does not live with;
  • the capacity of any adult caring for the child to provide for the needs of the child;
  • of the maturity, sex, lifestyle and background of the child;
  • the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents;
  • any family violence involving the child or members of the child’s family;
  • any family violence order that applies to the child or a member of the child’s family;
  • whether it would be preferable to make an order that would be least likely to lead to the further institution of proceedings in relation to the child; and
  • any other factor or circumstance that the Court thinks relevant.

What else will the Court look at?

When reviewing the willingness and ability of each of the child’s parents to encourage a relationship and the attitude to the child on the responsibilities of parenthood, the Court will consider:

  • Whether a parent has failed to take an opportunity to participate in making decisions about the child or to spend time with the child or communicate with the child.
  • Has facilitated or failed to facilitate decisions about the child, spending time with the child or communicating with the child.
  • Has fulfilled or failed to fulfil the parents obligation to maintain the child (example by Child Support).
  • The Court must have regard to events that have happened and circumstances that have existed since the separation occurred.

Court to Consider Child Spending Equal Time in Certain Circumstances

When making a parenting order, the Court must now consider:

  • Whether spending equal time with each parent is in the best interests of the child.
  • Whether spending equal time with each of the child’s parents is reasonably practicable.
  • If it is reasonably practicable make an order for the child to spend equal time with each of the parents.
  • Reasonable practicality is determined by factors such as:
  • how far the parents live from one another;
  • the parents current and future capacity to implement an arrangement for the child spending equal time with both parents;
  • the parents capacity to communicate with one another about the arrangement;
  • the impact such an arrangement would have upon the child or children;
  • such other matters that the Court may consider relevant.

What will happen if equal-time is not in the best interests of the children or is not reasonably practical?

IMPORTANT: There is no presumption that a child should spend equal time with each of its parents. In the absence of family violence and/or child abuse the Court must consider equal-time, but it is never bound to give it to you. There are often strong practical reasons why the Court will not order equal-time.

If it is not in the best interests of the child or it is not reasonably practicable to put in place an equal time arrangement the Court must make an order for the child to spend substantial and significant time with the parent that the child does not live with. The Court does this by determining again what is in the best interests of the child. The only circumstances where an order for substantial and significant time will not be made is where there are indications of serious family violence or child abuse or further indications that it really is not in the best interests of the child for that particular child to spend substantial and significant time with one of its parents.

Is substantial and significant time the same as traditional alternate weekends and half the holidays?

The simple answer to this is – no. Substantial and significant time is quite different is only limited by what is determined to be in the best interests of the child.

An order for substantial and significant time must include an order for the child to spend time with the parent on the following days and at the following times:

  • days that do not fall on weekends
  • holidays
  • days of special significance – such as Christmas Day, Easter Sunday, the child’s birthday, Mother’s Day and Father’s Day
  • time that allow the parent to become (if they are not already) involved in the daily routines of the child

That is, the Court must in most circumstances include in the Order that the child spend time with the parent on a week day. This may involve the child spending mere hours with that parent on a given day (for example, after school) or the child may stay with that parent overnight.

False Allegations

In Family Law we sometimes, sadly, discover that parents are so alienated from one another and in such a high level of conflict that they will say and do almost anything to stop the other parent remaining meaningfully involved in a child’s life. They may make false allegations of abuse or violence against a parent, or may tell the Court the child has made certain disclosures which the child did not make.

When proceedings are brought before a Court and the Court is satisfied that a party of the proceedings knowingly made a false allegation or statement in the proceedings, the Court must order that party to pay some or all of the costs of the other party to the proceedings. Not only are such allegations tantamount to perjury, but they may have other significant repercussions in a child’s life, as well as having significant other penalties.

Obligations of Legal Advisers

In accordance with Journey’s obligations under the new legislative framework, we advise as follows:

    1. You must consider at all stages either in the proceedings or in reaching an agreement in relation to a child that, if the child is spending equal time with each of the parents, is reasonably practicable and in the best interests of the child – you must consider an arrangement of that sortt.
    2. If equal time is not reasonably practicable or it is not in the best interests of the child, then you could consider the option of an arrangement of a child spending substantial and significant time (which is more than the traditional alternative weekend arrangement) with the parent.
    3. Decisions made in relation to parenting agreements, plans and orders should be made in the best interests of the child.
    4. Matters that may be dealt with by way of a parenting order are:

(a) the person or persons with whom the child is to live;
(b) the time the child is to spend with any other person or persons;
(c) the allocation of parental responsibility for a child (whether it is to be shared or whether it is to be sole parental responsibility);
(d) if two or more persons are to share responsibility, the form of consultations about that responsibility;
(e) the communication the child is to have with another person or persons;
(f) maintenance of a child;
(g) the processes to be used for resolving disputes about terms or operations of the plan (example attending mediation);
(h) the processes to be used to a change in the plan;
(i) any other aspect of the care, welfare or development of a child.

  1. If there is a parenting order in force in relation to a child, the order may include a provision that the order is subject to any parenting plan that the parent subsequently enter into.
  2. It is desirable to include in any parenting plan or order that deals with a form of consultation in relation to decisions to be made in the future and the form of dispute resolution to be used in avoiding future conflict and a way to change any order or agreement in the future.
  3. Programs are available to assist in relation to making a parenting order or parenting plan, including programs such as the Relationships Australia “Keeping up Contact” program.
  4. In the event that any matter proceeds to Court, the Court must have regard to the terms of the most recent parenting plan or order when making a parenting order if it is in the best interests of a child to do so.

Questions or Queries

If you have any questions or queries about this fact-sheet, or wish to discuss its contents further, please do not hesitate to Contact Us or contact your family law solicitor at Journey who will be more than happy to assist you.

Dispute Resolution

WHERE DO I START?

In the course of my daily practice I am often called upon to give advice quickly to men and women who find themselves unexpectedly in the position of either leaving their partner or having been left by their partner.

It is probably true to say that I sometimes get calls from people on the worst day of their lives.

I thought I would write about some of the issues that come up immediately after separation, often before either party gets to see a Lawyer and certainly before anybody has a chance to apply to the Court or reach agreement on issues.

Sometimes, because emotions are so raw people are not even speaking to each other.  Yet, it is under these circumstances that big decisions need to be made about who lives in the home, who is going to pay the bills, where are the children going to live and how often do the children get to see their other parent.

I will tackle each of these issues one at a time although they are by no means the only issues that crop up.  I hope the information below will be of assistance to anyone who finds themselves in this position.
Who Lives in the Home?

Many times the Father leaves the house and the children and their Mother stay in the home.  This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate.  Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”.  Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things.  Generally the person who has somewhere else to go and the money to fund the move will be asked to leave.  Unless he or she can convince the Court that there is no reason why they should leave.  It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Who Pays the Bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment.  This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past.  It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings.  The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Where Will the Children Live?

Now there is an obligation on he Court to consider shared care unless there is some disqualifying factor as set out in that section

FAQs About Children

Your Questions Answered

On these page we will list questions and answers that may be of help to you. We have made them up so to speak from a conglomerate of questions that we have been asked often over the years in our many years of combined experience in Family Law.But don’t be shy. Ring us or email us and ask us your question. Be reassured that we will never use your particular question on this page in any way.

Q. I have heard about shared parenting? Does this mean that I have the right to have the kids live with me half of the time?

A. The new shared parenting laws that came in in July 2006 do NOT mean that the child must live half time with each parent. However the recent case of Goode and Goode sets out how the Court must approach shared parenting. Go to the Children’s page on the toolbar to the left and it is all set out there, including a link to the entire judgement if you are feeling brave, and the relevant section of th Act.

Q. What do I do about Holidays? I just seem to get over one lot and it is time for the kids to go again. It is wearing me out!

A. At this time of year Children are sharing holidays between their parents. Remember to work together as best you can to minimise any stress the kids may feel at changeover times. As the children pile into your car and begin to excitedly tell you all of the things they did with the other parent, try not to react negatively.

Remember that each parent has a different style of parenting, That is Ok. Even if the other parent did something dumb and dangerous with the children, it is not OK to fly off the handle at the kids. It is not their fault. Hold your tongue if you can’t be enthusiastic about what they did and take it up with the other parent later when you have cooled down and where the kids can’t hear. Work on your reaction because that’s the only thing you can change.

Q. I have never had to worry about Family Law issues before, so I have no idea where to go for a comprehensive look at the way the system works. I want to learn more before I go near the lawyers.

A. Good idea! I think the Family Court web site is the best place to start, It even has a page for children! Go to the Family Court Web site

Q: How can I keep my costs down in Family Court proceedings?

A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court.

Q: My spouse and I have just separated. Where can I get general information? I don’t necessarily think it will end up in Court. I just want to know where I stand.

A: In our experience there are a number of ways that a client can keep their costs down. The main thing is to remember that your matter will be time costed, so the less time your lawyer has to spend the cheaper it is for you. At Brisbane Family Lawyers, we offer a number of options for our clients that enable them to keep their costs down. For instance, where a client has access to the internet, we encourage them to complete the simpler Family Court and Federal Magistrate’s Court forms themselves. This saves them money as all we have to do is print the form and file it. This means that they are only paying for our expertise where it is needed, such as drafting more complicated documents and letters and attending mediation or Court. Another way is to keep calls short and to the point, and have questions that you want to know the answer to, written out when you visit or email your queries to us. Our philosophy is that we are partners with our clients in negotiating.

Q: My 19 year old says I should pay maintenance. How can this be?

A: ADULT CHILD MAINTENANCE The Child Support Agency handles the collection of maintenance for children up to the age of 18 years or until they finish Grade 12 whichever is the later. However, many people over the age of 18 continue onto University and continue to be supported by their parents during their tertiary education. The Family Court has power to order parents to contribute to the support of children over the age of 18 years if they are continuing in University Education. I often have enquiries from people about the responsibilities of parents in this regard. First off, it is a difficult question as to whether or not it is the child who has the right to claim maintenance or the parent with whom the child lives. Both parents should contribute to the child support but Family Court cases recently have developed strongly along the lines that a child should also develop some self sufficiency. The Court in a number of cases has made it clear that it is not reasonable.

Q: CHRISTMAS HOLIDAY CONTACT! How do others handle this?

A: Christmas Holidays are a time when many people have concerns about arranging contact with their children and the main resident parent. For the post part, I am happy to say, people are able to work out commonsense ways to share both the holidays and the actual Christmas period. Sometimes, however, people get into dispute over these issues. For people who have Court Orders, and who have already survived one Christmas holiday period, things will generally fall into place. For others, though, especially if it is the first Christmas since separation and there are no Court Orders, it seems difficult to know how to deal with everybody’s wishes. I am writing this column for people in that situation. The “biggy” is how to share Christmas Day. Some separated couples would rather avoid seeing each other on Christmas Day if at all possible. For them, an arrangement that sees the children with one of the parents on Christmas Eve and the other parent on

Q: I have a really grumpy Husband. Can we still have mediation?

A: You would be amazed what mediation can do It is absolutely the way of the future. Of course if there is domestic violence where one of you is at risk of being bullied, or where there is an an imbalance of power. Otherwise, go with your feelings and get your lawyers to set up mediation ASAP.

Urgent or interim Child Applications

When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.

Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.

Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.

In Interim Court hearings:

  1.  Cases are limited to two hours
  2.  The Court can not make or should not make findings of fact in contested as a general proposition
  3. There will be no cross-examination; and
  4. The Court will proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.

The Approach taken by the courts:

Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. 

The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.

If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.

Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:

  1. Identify the competing proposals of all the parties
  2. Identifying the agreed or uncontested relevant facts (these will be given the most weight)
  3. Identify the issues in dispute at the interim hearing.
  4. Consider the matters in Section 60CC (The section deals with the best interests of the children)  that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
  5. Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
  6. If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
  7. If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
  8. If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
  9. If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.

What sort of findings can the Court make on an interim basis?

It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:

  1. T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
  2. Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
  3. The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
  4. T spends one half of the July school holidays with the Father.
  5. The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
  6. The Father has the assistance of his parents to care for the children and works in his family business with them.
  7. The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.

Conclusion – Is this a change or not?

It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases.  While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.