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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. 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. 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. 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. You can read it HERE .

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

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

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

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

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.

Understanding the Divorce Process, with Clickable links to help

Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.

Divorce and separation

The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.

If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.

Who can apply for a divorce?

In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:

You consider Australia your home country and will live in it permanently or
You’re an Australian citizen or
You normally live in Australia and have done so one year before filing for divorce.

If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.

When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.

‘Separation under the one roof’… What does it mean?

You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.

How to apply for divorce

Simply register for the Commonwealth Courts Portal if you haven’t already done so, then complete the Application for Divorce online and pay the filing fee.

How much will a divorce cost?

The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.

What to do if you’ve been married less than two years

You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.

What if you have children and joint property?

The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.

Where to find more information on divorce and separation

Federal Circuit Court of Australia – Separation and divorce
Australian Securities & Investments Commission – Divorce and separation
Department of Human Services – Child support and Parent’s guide to child support.

Changing your name and address after getting divorced

Reverting to your maiden name or former name

If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.

If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:

Australian birth certificate
Australian marriage certificate
Updated photo ID
Identity documents

If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.

If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.

Who you need to notify when changing your name and address

Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.

Australian Taxation Office
Medicare
Australian Electoral Commission (Electoral roll)
Queensland Government (Motor vehicle licence)
Queensland Government (Motor vehicle registration)
Australian Government (Family and community services)
Australian Government (Change of address checklist)
Westpac
NAB (Change of contact details form)
NAB (Credit card account changes)
Commonwealth Bank
ANZ
Brisbane City Council (Change of details)
Brisbane City Council (Change your address online form)
Moreton Bay Regional Council (Change of name)
Moreton Bay Regional Council (Update your address)
Go via QLD tolls (Change of details form)
Go via QLD tolls (Update your address).

You can easily and quickly notify organisations of your new name using a personalised name change kit.

Property and asset settlement

When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.

What’s included in the property pool?

When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.

The property pool can include:

Joint property
Investments (shares, real estate)
Interests in businesses and companies
Interests or entitlements in trusts
Interests in deceased estates
Superannuation and savings
Inheritance money or lottery win
Boats
Vehicles
Jewellery
Artwork
Personal injury and compensation payouts
Long service leave
Life tenancy
Pension entitlements

How to start the property settlement process

The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.

Time constraints for property settlement

Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.

How to formalise your property settlement

The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.

If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.

How is the value of the assets determined?

When negotiating a property settlement, the Court will determine the value of the assets of both parties.

Furniture –The value of furniture is determined by their current sale value or second-hand value, not their replacement value or insurance value.
Joint property –The value of the property is what someone’s prepared to pay for it. But if you won’t be selling it, the value of the home is determined by taking the average of all the valuations provided by reputable real estate agents in the area. This is enough for most negotiations, but if agreement cannot be reached on the value and it goes to trial, a proper valuation by a registered valuer will be needed.
Cars, Motorbikes :These can be valued initially from a Redbook Valuation or a formal valuation obtained from a registered valuer.
Boats; These can be either valued or comparative values can be obtained from Tradeboats online.
Caravans These can be estimated initially from a Caravan online sales site or a formal Valuation
Superannuation –The value of your superannuation is harder to determine as its current value is lower than it’ll be at your retirement age. A Journey Family Lawyer can use forms to obtain information from your superfund to determine your super’s value. The forms are included in the Superannuation Information Kit. Self-managed super funds are generally valued with the help of an accountant. Some special Superannuation funds like Military Super have their own valuation process.

How are assets and debts divided?

When deciding how to divide assets and debts, the Court looks at:

What you’ve got and what you owe (assets and debts and what they’re worth)
The parties’ direct financial contributions to the marriage (wage and salary earnings)
The parties’ indirect financial contributions (gifts and inheritances from families)
The non-financial contributions to the marriage (caring for children and homemaking)
The parties’ future needs (the Court will consider your age, health, financial resources, care of children, ability to earn, etc).
Any financial resource or entitlement that you have that is not actually ‘property’ that can be divided between you both.

How can you split superannuation?

While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.

You can split superannuation by:

Entering into a formal written agreement
Seeking a consent order
Obtaining a court order if you can’t reach an agreement with your ex partner.

If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.

Child custody

Child abuse or family violence

If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.

If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.

While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.

What is ‘equal shared parental responsibility’?

Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.

Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:

Where your children live
Who your children spend time and communicate with
What time your children spend with the parent they don’t live with
Times for your children to contact each parent by phone when they’re with the other parent
Childcare or education
Medical issues
Religious or cultural practices
Financial support for your children
Changeover arrangements (Where and what time should changeover occur, who drives where)
Arrangements for special days (Christmas, Easter, Mother’s Day, Father’s Day, birthdays)
How you and your ex-spouse will communicate with each other.

Who can you include in parenting arrangements?

If it’s in your children’s best interests, you can include the following people in your parenting arrangements:

Grandparents
Extended family
Other people who are concerned with the welfare of children.

Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.

Written parenting arrangements

There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.

1. Parenting plan

A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.

You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.

2. Consent order

You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.

The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.

You can change a consent order by making another consent order, parenting plan, or parenting order.

3. Parenting order

A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.

A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.

Child support payments

Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.

Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.

Co-parenting and managing a separation with children

Have your children’s best interests in mind

When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:

Protecting your children from harm
Ensuring your children have a meaningful relationship with both parents
The views of your children (Giving weight to their age and maturity)
The relationships your children have with each parent and other family members
The capacity and participation of each parent when parenting and spending time with the children
The effect of any changes to the children’s circumstance
The practical difficulty and expense of any arrangements.
The relationship the children have with each other sibling

What is ‘equal shared care’?

Equal shared care means your children spend half the time living with you and the other half with your ex.

In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.

What if you’re relocating?

If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.

Tips for successful co-parenting

Here are some tips for successful co-parenting:

Don’t use your children to relay messages to their other parent.
Speak directly to your ex partner but keep it businesslike and to the point
Don’t talk badly about your ex to your kids or in their hearing
Be considerate towards your ex-partner
Respect your children’s time with your ex-partner
Don’t do something that would make it hard for your children to have both parents attend their weddings
Don’t let another adult’s angst affect the decisions you make in your parenting arrangements with your ex-partner
Plan your time when your children are away, so that you don’t mope
Don’t air your grievances on social media, even if you’ve blocked your ex-partner. Someone will pass it on and one day the kids may read it too..

Would you like some guidance through your divorce? Contact Journey Family Lawyers Brisbane today

With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.

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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.

Managing on one wage

Hi everyone! This weekend I have come across a great website where everyone is sharing their tips for reducing their costs of cooking , cleaning and living on one wage. I love it ! It shows what is possible when people support one another. The address is Click here.

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:

The benefit to the child of having a meaningful relationship with both of the child’s parents; and
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:

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.
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.
Decisions made in relation to parenting agreements, plans and orders should be made in the best interests of the child.
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.

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.
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.
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.
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.

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.

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:

Cases are limited to two hours
The Court can not make or should not make findings of fact in contested as a general proposition
There will be no cross-examination; and
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:

Identify the competing proposals of all the parties
Identifying the agreed or uncontested relevant facts (these will be given the most weight)
Identify the issues in dispute at the interim hearing.
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)
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.
If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
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.
If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
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:

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.
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.
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.
T spends one half of the July school holidays with the Father.
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.
The Father has the assistance of his parents to care for the children and works in his family business with them.
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.

Child Support

http://www.csa.gov.au/

Q: The Child Support Agency has me all confused. I would like to be able to learn more about the processes that I can use to make sure they assess my children’s level of support properly according to my own situation?

A: There is a lot to be learned from the Child Support Agency website. There are downloadable forms to use if you need to. You can always telephone the child Support agency on the numbers on your Letters from them. and also on the web page. Don’t forget to always quote your case number when you call or write to them.

Q: How do I change a child support assessment that I don’t agree with?

A: You need to contact child support and complete a form that asks them to consider changing the assessment. There are 9 grounds on which you can rely. Send the form to CSA and they will send it to your partner for response. The case officer will then arrange an appointment to see you both or talk to you on the phone and will make a decision. IF you are not happy with the decision, you may appeal to the Child Support agency. If you are still not happy, then and only then can you take the matter further. Check the form HERE on the CSA website.