Children & Separation – Important Information

3 Apr 2011 - Children 

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.

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