Children & Parenting

OVERVIEW

Reaching agreement on appropriate arrangements for the care of children after separation is a priority for separating parents.

OUR EXPERTISE AND APPROACH

We are not just experts in family law, we are also up-to-date on the latest research about children and how to minimise the impact of separation on them. We regularly act for grandparents and other people involved with the children.
We give advice on practical solutions, tailored to each family’s needs.

Hidden First Field

Independent Children's Lawyer

An Independent Children’s Lawyer (“ICL”) is appointed in many disputes involving children.  These cases are generally the more difficult children’s cases where the issues affecting the children may include:-

  • drug abuse
  • violence
  • neglect of children
  • serious issues of mental health relating to the children or either or both parents
  • alienation of children from a parent
  • ages, maturity and wishes of the children
  • relocation
  • proposal to split siblings
  • cultural and religious differences
  • special medical procedures

The ICL is appointed to look at the case from the perspective of the best interests of the child.  The ICL does not take sides, act for either party or act on the “instructions” of the child.

The ICL must investigate the matter and present to the court an independent perspective about which arrangements are in the best interests of the child.

Depending on the age and maturity of the children, the ICL usually meets the child to gain some insight into the child. If the ICL meets with the child, they may explain their role in the proceedings and the court process in terms that the child is able to understand. The ICL often speaks to the child’s counsellors, school teachers and school principals to see how the child is progressing and contacts medical practitioners.

The ICL usually arranges a “family report”. A family report is prepared by an experienced family consultant who is normally a psychologist or a social worker. The family report writer sees the parents, the children and sometimes other family members. The family report makes recommendations regarding what arrangements will best meet the child’s future care, welfare and developmental needs. The court and the ICL are guided by these recommendations.

The ICL examines documents which may be subpoenaed from organisations such as:

  • Department of Human Services – if there have been past allegations or there are current allegations, that the children are abused or are at risk of being abused
  • Victoria Police – for criminal records of the parties or their current partners
  • Schools – for the progress and developmental records of the children
  • Medical, psychiatric and psychological records of the children and/or their parents
  • Vic Roads – for speeding fines or other motor vehicle related offences

Ultimately, the role of the ICL is to put independent objective material to the court and help the court to make a decision that is in the best interests of the child.  The ICL may act as the “honest broker” trying to mediate or broker a settlement between the parties.

Injunctions

You may need to seek court orders to protect your rights before final orders are made.  An injunction is a court order which requires someone not to do something.  Examples of injunctions are:

  • To stop someone dealing with proceeds of a bank account
  • To stop someone dealing with property including the sale of property to a third party
  • Stopping someone from taking a child out of the country

The Family Court also has the power in certain circumstances to make orders, including an injunction against a third party, for example, a corporation or the trustee of a trust.  If you consider you may need an injunction, you should seek advice from an accredited family law specialist as soon as possible.

Parenting Law

The law that applies in Australia in relation to the care of children after separation is the Family Law Act 1975 (Cth) (“the Act“).  It states that the most important matter when determining a dispute about the future care of a child, is the best interests of that child.

Best interests of the child

The Act sets out the primary and additional considerations for determining what is in a child’s best interests.

The primary considerations are:

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

Greater weight must be given to protecting a child from harm.

The additional considerations include:

  • Any views expressed by a child and factors relevant to the weight that should be given to those views;
  • The child’s relationship with each parent and other persons;
  • The extent to which each parent has participated in a child’s life and decisions affecting that child and provided financial support for that child;
  • The capacity of each parent to provide for a child’s needs;
  • The practical difficulty and expense of a child seeing and communicating with each parent;
  • The demonstrated attitude of each parent towards a child and the responsibilities of parenthood;
  • The maturity, sex, lifestyle and background of a child and child’s parents; and
  • Any family violence.

A formal agreement for the care arrangements of a child is often not necessary.  Alternatively, an agreement can be formally recorded as parenting orders made by a court or, more informally as a parenting plan.

Parenting orders

There are three key concepts under the Act in relation to children, being:

  • Parental responsibility – the responsibility for making decisions relating to a child’s long term care, welfare or development, such as a child’s schooling, health and religion;
  • With whom a child lives – the person/s with whom the child primarily resides; and
  • With whom a child spends time – the person/s a child is to spend time with.

A court can make parenting orders setting out each person’s responsibility for a child, including:

  • How parental responsibility is shared;
  • With whom a child lives;
  • The time a child spends with and/or communicates with each parent and others;
  • The form of consultation between persons responsible for decisions relating to a child;
  • Maintenance of a child; and
  • Any other aspect relating to the care, welfare and development of a child.

When making parenting orders, a court starts with the presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.  If there has been family violence or abuse, the presumption does not apply.

If equal shared parental responsibility is in a child’s best interests, the court must consider whether it is practical for a child and in that child’s best interests to spend equal time with each parent.  If an equal time arrangement is not suitable, an arrangement to spend “substantial and significant time” with each parent must be considered.  Sometimes it is not in the best interests of a child or practical for a child to spend equal time or substantial and significant time with each parent.

Substantial and significant time means a child spends time with a parent on weekdays, weekends and holidays, enables the parent to be involved in the daily routine and significant events of a child and enables a child to be involved in significant events of the parent.

Parenting orders can be made in favour of grandparents, step-parents, social parents and others who are involved with the children. 

Relocation - Interstate and Overseas

One of the most difficult areas of family law practice arises when a parent wants to move, taking a child with them. This may be a move interstate, within the same State (including from one side of a city to another) or overseas.

It is a difficult area in many respects.  It has a significant impact on the arrangements for the care of the child.  The change is very likely to upset the other parent.  One parent inevitably feels like the loser if the child moves away and the parent’s time with that child is altered. 

The main question is whether the proposed relocation is best for the child.  The principles considered include:

  • the best interests of the child are the paramount consideration, but are not the sole consideration
  • the application for relocation may be successful even if the reasons are not compelling for the proposed relocation 
  • the reasons for the parent’s proposed relocation are only one matter considered
  • competing proposals are looked at in terms of their advantages and disadvantages, and the best interests of the child

The court weighs up the parents’ competing proposals and determines the best interests of the child.  Each of the parents must have detailed proposals and explain to the court how their proposals will promote the children’s best interests.

The proposal by the parent seeking to relocate with a child must set out very clearly:

  • The place where the child will live
  • The school the child will attend including curriculum, extra curricular sport, costs, etc
  • The time the child will spend with the other parent and how the costs of travel, and possibly the accommodation of the other parent, will be paid
  • The communication the child will have with the other parent

Courts prefer detailed proposals which show that the parent seeking to move has thought about the proposal and designed it to promote the best interests of the child. 

A proposal by a parent seeking to oppose a relocation must set out:

  • Where will the child live
  • If the child will live with the parent opposing the move, the reasons for this.  Why did the parent not previously apply for the child to live with that parent?
  • Can the parent move to the place where the other parent wants to move?

Courts are often reluctant to alter long standing arrangements where one parent has been the primary carer of the child.

However, this is not to discourage parents seeking to oppose relocation.  Not each and every application for relocation will be allowed.  The primary consideration is “what is best for the child”.

An international move will, of necessity, place extra strain on the child’s relationship with the non-relocating parent.  The court may be reluctant to allow relocation if it will be difficult to preserve the child’s relationship with the non-relocating parent.

Each case is determined on its merits.  There are no guarantees of the outcome for either parent.  The court tries to do what it perceives is best for the child.

Special Needs of Children

We understand that some children have special needs.  We have had experience in negotiating and obtaining parenting orders for children with special or extra needs arising from:

  • Autism Spectrum Disorder (ASD)
  • ADHD
  • Munchausen’s syndrome by proxy
  • music or sporting ability
  • educational giftedness
  • intellectual and learning disabilities

An agreement for the care arrangements of a child should accommodate any special needs of a child.

An assessment by the Child Support Agency can be departed from to meet the increased costs of maintaining a child with special needs.  Special needs do not always arise from a disability, but may arise from a special ability.    Needs are special if they are beyond the usual needs of a child.  Needs which may need to be met include facilities for a child with disabilities, medical expenses, and education.

Maintenance for a child over 18 years of age can be ordered by the court to enable a child to complete their education, or because a child has a mental or physical disability.  In determining the care arrangements for a child, the best interests of the child is the paramount consideration.  When entering into care arrangements for a child with special needs the ability of each party to care for the child and meet the child’s needs are considered.

Setting Aside Property Orders

A party can apply to the court to have a final property settlement order varied or set aside in certain limited circumstances. It does not matter if an order was made by consent or by a judge after a contested hearing.

Grounds for setting aside a property settlement order

A party can ask a court to set aside a final property order on limited grounds. It is not sufficient that a party is no longer happy with the order or disagrees with it. The grounds on which a court can set aside an order are:

  • there has been a miscarriage of  justice as a result of fraud, duress, suppression of evidence (including failure to disclose information), the giving of false evidence or similar circumstances
  • circumstances have arisen since the order was made which make it impracticable for all or part of the order to be carried out
  • circumstances “of an exceptional nature” have arisen in relation to the care, welfare and development of a child of the marriage or relationship and as a result the child or the person caring for the child will suffer hardship if the order is not set aside
  • a party has failed to comply with an order and as a result of the failure to comply it would be just and equitable to set the original order aside and make another order in substitution for it
  • a proceeds of crime order has been made against a party or the property of a party.

Even if the court finds that one or more of the above grounds exists, the court may not set aside or vary the orders. The court has a discretion to decide what is appropriate in the circumstances.

Consent to set aside order

Parties can consent to a final property order being varied or set aside by:

  • making an application to the court for a new order to be made by consent which varies or sets aside the previous order
  • From the conduct of the parties the court can infer that they consent to the order being set aside. For example, if the parties reconcile after the order is made and act in a way inconsistent with the final order.

Other ways in which a final property order might be varied or set aside

A final property order can also be varied or set aside if a party appeals the order made by the court. An appeal must be lodged within 28 days of the order being made.

There are only limited grounds on which an order can be appealed.  It is not sufficient that a party is unhappy with the court’s decision. A successful ground of appeal might exist if the trial judge made a factual error, made an error of law, failed to give adequate reasons for the decision, was prejudicial or if a party was denied procedural fairness.