Childrens' disputes Childrens' disputes

Childrens' disputes

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Our family law team will assist you with any query or advice you require.

If the parties can reach an agreement:
If the parties are unable to reach an agreement:

To find out more, please contact our Family Law team.

 

Shared parenting

Under the Family Law Act 1975 there is a presumption that parents will have equal shared parental responsibility for parenting of their children. Parenting responsibility relates to major decisions about the long-term care, welfare and development of the child or children and includes issues such as:

  • The child’s education.
  • The child’s health.
  • The child’s religion.
  • The child’s participation in extra curricular, sporting or artistic activities.

The presumption may not apply in cases where there is family violence or abuse or there are other reasons why the presumption may not be in the child’s best interests.

Where the court decides that the parents should have equal shared parental responsibility for the child or children, the court must consider whether it would be in the child or children’s best interests and reasonably practicable for the child or children to spend equal time with both parents.

In the event that the court does not consider that equal time orders are in the best interests of the child or children or reasonably practicable, the court must then consider whether it is in the child or children’s best interests and reasonably practicable for the child or children to spend significant and substantial time with each parent.

Where the court considers it is appropriate for the child to spend significant and substantial time with each parent, the child or children will live with one parent and spend time with the other parent. Substantial and significant time is more than just weekends and holidays and involves participating in the child’s day to day activities and includes a mix of day time and night time contact.

If you need help arranging a shared parenting plan contact our caring and understanding team of child custody lawyers.

 

 

Parenting plans

The Family Law Act 1975 compels advisors (solicitors, family counsellors, family dispute resolution practitioners, family consultants etc.) who provide advice or assistance to people in relation to children’s issues to:

  • Inform the party about the option of entering into a parenting plan in relation to the children.
  • Advise the party where they can get further assistance to develop a parenting plan and advise them that if the children are spending equal time with both parents, and this is reasonably practicable and in the best interests of the children, then a parenting plan of that kind should be considered. If that type of arrangement is not reasonably practicable or in the children’s best interests, the advisor must tell the party that they should consider the children spending substantial and significant time with each of the parents, again subject to considerations of practicality and the children’s best interests.

Substantial and significant time is more than just weekends and holidays and involves participating in the children’s day-to-day activities and includes a mix of night time and day time contact.

What is a parenting plan?

If parents reach an agreement about the arrangements for their children after separation, the parties can either:

  • Make a parenting plan detailing the future arrangements for the children.
  • File consent orders which are approved by the Family Court.

A parenting plan is a written agreement made between the parents of children which is signed by both parents and dated. The Family Law Act states that a parenting plan must cover one or more of the following:

  • Who the child or children live with.
  • The time the child or children spend with each parent and with other people (for example grandparents).
  • How the parents share parenting responsibility for the child or children.
  • The communication the child or children will have with the parent or other people that they do not live with.
  • The maintenance of the child or children.
  • The process to be used to change or resolve disputes about the parenting plan.
  • Any other aspect of the care, welfare or development of the child or children or parenting responsibility for the child or children.

A parenting plan is not a legally enforceable contract. It is not like a parenting order, which is made by the court. Whilst a parenting plan is not enforceable, the court will take into consideration the terms of a parenting plan when considering the best interests of a child or children.

What if there is already a court order?

The parties to a parenting order can agree to change the terms of that order by making a parenting plan (so long as the original order was made on or after 1 July 2006).

Our team of family law experts can help you with a parenting plan. Contact us to discuss.

 

Consent orders

Parties can file a consent order which is a written agreement that is approved by the Family Court in relation to children’s issues. Consent orders can deal with parenting arrangements between parties for children (also known as a parenting order).

Parties to a consent order will be bound as if the order had been made by a judge following a court hearing. Parties can apply for consent orders without the need to “go to court”.

What can be included in a consent order?

The agreement submitted to the Family Court by consent may cover one of the following:

  • How the parents share parenting responsibility for the child or children.
  • Who the child or children should live with.
  • The time the child or children should spend with each parent and other people (for example grandparents).
  • Any communication the child or children will have with their parents or other people that they do not live with.
  • Any other aspect of the care, welfare or development of the children or parenting responsibility for the children.

Prior to approving consent orders, the Family Court must be satisfied that the orders the parents have agreed to are in the best interests of the children.

For help drafting and submitting a consent order contact our team of Brisbane Family Law experts.

Parenting orders

Following separation, if parents cannot agree about future arrangements for their children, a parent can apply to the Court for a parenting order.

Before a court application for parenting orders is filed, parties must obtain a certificate from an accredited family dispute resolution practitioner stating that the parties have attended family dispute resolution counselling.

Who can apply for a parenting order?

The following parties may file an application in the Family Court seeking a parenting order:

  • One or both of the parents
  • The child or children
  • A grandparent
  • Any other person or persons concerned with the care, welfare and development of the children

 

What can a parenting order cover?

The Family Law Act states that a parenting order made by the Court can cover one or more of the following issues:

  • How the parents share parenting responsibility for the child or children
  • Who the child or children should live with
  • The time the child or children should spend with each parent and other people (for example grandparents)
  • Any communication the child or children will have with their parents or other people that they do not live with
  • Any other aspect of the care, welfare or development of the children or parenting responsibility for the children

What options are available if the parenting order is not followed?

When the Court makes a parenting order, there are consequences if one of the parents to that order does not comply with his or her obligations.

If you consider that another party has failed to follow the parenting order made by the Court, then the following options are available to you:

  • Participating in further family dispute resolution counselling. If agreement in relation to changing the parenting order is reached, then the parties can record the agreement in a parenting plan
  • Applying to the Court to enforce the parenting order

Our team can help you with a parenting order. Contact  us to discuss.

Child support lawyers

Both parents are responsible for the financial support of their children. This financial support is also known as "maintenance". The responsibility to provide financial support to your children is not changed by:

  • Separation or divorce by the parents.
  • Where or with whom the children live.
  • The remarriage of one or both parties.
  • The financial support necessary for the maintenance of the children.

Reaching agreement about child support

If both parents agree, they can make their own arrangements for child support. The parents can enter into a child support agreement which can be part of a parenting plan. Please note that there are particular requirements involved if one parent is receiving Centrelink benefits.

The parents have a number of options, including:

  • Agreeing on how much child support should be paid, and subsequently arranging for the payments to be made without the involvement of the Department of Human Services (Child Support).
  • Agreeing on how much child support should be paid, and then arranging for the Department of Human Services (Child Support) to register this agreement as a child support agreement. The payments can then be made privately or the Department of Human Services (Child Support) can collect the payment on your behalf.
  • Request the Department of Human Services (Child Support) to use a formula to work out how much child support should be paid and subsequently arrange for payments to be made without the involvement of the Department of Human Services (Child Support).
  • Request the Department of Human Services (Child Support) to use a formula to work out how much child support should be paid, and subsequently request the Department of Human Services (Child Support) to collect and distribute the payments.

Child support scheme - reforming legislation

On 28 February 2006, the then Minister for Families, Community Services and Indigenous Affairs, the Honourable Mal Brough MP, announced that the Australian Government would reform aspects of the child support and family payment systems (the Child Support Scheme) in order to protect the best interests of children, while balancing the interests of parents and reflecting community expectations.

Changes to the Child Support Scheme are being introduced in three stages. These changes and what they mean for your child support assessment are summarised below.

To find out more, please contact our Family Law team.

Children's cases program

The Family Court has chosen to meet its requirements under the amendments to the Family Law Act 1975 by changing the way it hears disputes involving children. The Children's Cases Program (CCP) has been the protocol for all cases involving children in the Family Court since 1 July 2006.

The CCP is a court process that adopts a significantly less adversarial procedure for hearing children's cases. The essential differences (and advantages) of the CCP process are:

  • One Judge is assigned to manage and preside over all court events for that case.
  • The Judge is in charge of the case and plays the leading role in relation to the conduct of any applications or hearings. The Judge may identify any issues to be determined, the evidence to be given, the way evidence is received and the manner in which the hearing is conducted. To this effect:
    • Significant resources are made available at a very early stage of the matter. For example, a family report is often ordered at the first court appearance.
    • Evidence by the parties is given not only by way of an affidavit but also through oral evidence and the completion of a questionnaire.
    • The issues in dispute between the parties are defined at the first court hearing and continue to be defined on an ongoing basis.
    • The Judge has the capacity to speak directly with the parties in addition to relying upon affidavit material and oral evidence.
    • The application of the Evidence Act 1995 (Cth) and Family Law Rules 2004 will be at the discretion of the Judge.
  • The Family Court setting will be informal with the layout being determined by the Judge in a manner that he/she considers best meets the needs of the case. The parties must report all alternative dispute resolution to the Judge.

The CCP ensures that there is not one climactic trial but a continuum. The case progresses with the assistance of judicial direction, without complex rules of evidence and formal procedures and directly involves the parties. The CCP process is more child focused and better identifies and meets the objectives of the Family Law Act 1975, improves case management and allows clients to take responsibility for their case.

To find out more, please contact our Family Law team

Relocation, travel & abduction

Relocation

Moving away with the children to another town, state or country is known as relocation. It is essential that both parents consent to one party relocating with the children.

If a parent without a Family Court relocation order or the consent of the other parent relocates, then the Family Court or Federal Circuit Court may require that parent and the children to return. Also, if there is a parenting order in place in relation to the children's arrangements, then that parent will be in breach of the parenting order.

If the parents cannot reach agreement about the proposed relocation, then a Family Court application seeking a relocation order can be made. The Family Court will only permit the relocation if it is in the best interests of the children.

Alternatively, the parent refusing to agree to the relocation can apply to the Family Court seeking to prevent the relocation.

Travel

A parent wishing to take the children overseas should obtain the other parent's consent.

By law, the written consent of each parent must be provided before an Australian passport can be issued for a child.

If you think that your child may be taken from Australia without your consent, we recommend consulting a family lawyer for advice in relation to making a Family Court application preventing a passport being issued for the child and the child from travelling outside Australia.

We can assist you to make an urgent Family Court application where appropriate. If the court has closed and in cases of emergency, an urgent application can be made if it appears that the children may leave Australia before the court registry reopens.

Abduction

The Family Law Act 1975 regulates child abduction within Australia. In the event that a parenting order is in force in relation to the children, a person must not:

  • Remove the children from the care of a person.
  • Refuse or fail to deliver or return the children to a person.
  • Interfere with the exercise of performance of any of the powers, duties, and responsibilities that a person has under the parenting order.

If there is a risk that the children may be wrongfully removed from Australia and there is an existing Family Court parenting order in respect of the children, it is possible to have a PACE Alert put in place through the Australian Federal Police. Once a PACE Alert is issued, the children's details are held on an airport watch list at all international departures points within Australia seeking to prevent the children from departing the country.

If there is no current Family Court parenting order in relation to the children, an application to the Family Court can be filed in relation to the children and a copy provided to the Australian Federal Police. The Australian Federal Police can then issue a PACE Alert in the children's names.

The Act also prohibits parties to a parenting order from taking or attempting to take the children concerned outside of Australia.

In addition, Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The convention only applies to member countries and requires abducted children to be returned to the home jurisdiction so that the appropriate local court can determine the matter. Before making such an order the court must be satisfied that the relevant children were “habitually resident” in a convention country immediately before their removal and that the rights of custody are attributed to a person.

If children have been wrongfully removed and the Child Abduction Regulations do not apply, then the ordinary law relating to children applies in respect of any court proceedings. This includes court proceedings for the return of the children to their home country. These proceedings are determined on the basis that the best interests of the children are the paramount consideration.

To find out more, please contact our Family Law team.

Children dispute resolution

When parties separate differences often arise between spouses, particularly relating to money and children.

It is necessary to make use of the strategies available to conclude arrangements.

In short, these strategies include:

  • Negotiation.
  • Mediation.
  • Arbitration.
  • Conciliation.
  • Litigation.

Generally, litigation through the courts is relied upon as a last resort. Our Family Law team is experienced in all dispute resolution techniques and will advise you on the most suitable technique or combination of techniques to meet your needs.