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Guide to Divorce for Aussie Families in 2024

Going through a divorce is never easy, but understanding the process can help manage the journey better. Whether you’re considering a divorce or already going through one, knowing the legal requirements and steps involved can make a significant difference. The goal is to reach a fair and equitable resolution while minimising stress for all involved, especially children.

In Australia, divorce involves more than just ending a marriage. It includes property settlement, child custody arrangements, and financial support. Each of these aspects requires careful consideration and, often, negotiation. The legal system aims to ensure that both parties walk away with a fair share, while the best interests of the children remain a priority.

Navigating the emotional and practical challenges of divorce can be overwhelming. Thankfully, various support services and strategies can help you cope with the stress and make informed decisions throughout the process. By staying informed and seeking the necessary support, you can better manage the complexities of divorce and focus on starting the next chapter of your life.

Understanding the Divorce Process in Australia

1. Legal Requirements for Divorce

Before you can file for divorce in Australia, you must meet specific legal requirements. Firstly, you need to be legally married and have proof of marriage, such as a marriage certificate. Secondly, you must show that your marriage has broken down irretrievably, which means there is no chance of getting back together. 

This usually requires a separation of at least 12 months. Australian law also requires at least one spouse to regard Australia as their permanent home, be an Australian citizen, or ordinarily live in Australia and have done so for at least 12 months before applying.

2. Steps to File for Divorce

Filing for divorce involves a few straightforward steps. First, obtain an application for divorce from the Family Court website. Fill out the application, noting all required details about your marriage and separation. Once completed, file the application with the Family Court and pay the required fees. 

If you have children under 18, you will need to attend a divorce hearing. If the application is joint, there’s no need for a court appearance. The court will review your application, and if everything is in order, they will grant a divorce order, which becomes final one month and one day after the hearing.

3. Timeline and Processing

The processing time for a divorce application can vary, but on average, it takes about four months from filing the application to the finalisation of the divorce order. This includes the mandatory separation period of 12 months prior to filing. After submitting your application, it typically takes several weeks for the court to process the paperwork and schedule any necessary hearings. 

Once the divorce order is granted, a one-month waiting period ensues before the divorce is officially finalised. Being aware of this timeline helps in planning for post-divorce arrangements, such as property settlements and child custody.

Key Considerations for Property Settlement

1. Identifying and Valuing Assets

One of the first steps in a property settlement is identifying and valuing all assets. This process includes gathering information on real estate, bank accounts, investments, superannuation, personal belongings, and any other property. 

Accurately valuing these assets is crucial for a fair division. Sometimes, hiring professional appraisers or accountants might be necessary to get precise valuations. This ensures that both parties have a clear understanding of what needs to be divided.

2. Negotiating Settlements

Negotiating a property settlement involves discussions between both parties to reach an agreement on how to divide assets and liabilities. This process can be amicable or contentious, depending on the circumstances. It’s essential to approach this with a clear understanding of your rights and contributions during the marriage. 

Mediation can be a helpful tool in negotiations, providing a neutral third-party mediator to facilitate discussions and help reach a fair agreement. Open communication and a willingness to compromise can often lead to a more satisfactory outcome for both parties.

3. Legal Protections and Rights

When it comes to property settlements, knowing your legal protections and rights is vital. The Family Law Act provides a framework for fair division, considering factors like each partner’s contributions, future needs, and the length of the marriage. Legal advice can help you understand these rights and navigate the settlement process effectively. 

If negotiations fail, court intervention may become necessary. Courts have the authority to make binding decisions to ensure a just division of property, protecting both parties’ interests. Understanding your legal protections can provide peace of mind and ensure a fair outcome.

Managing Child Support and Custody

1. Determining Custody Arrangements

When a couple divorces, one of the most crucial issues to resolve is child custody. Determining who the children will live with and how much time they will spend with each parent can be challenging. Factors such as each parent’s living situation, their relationship with the child, and the child’s needs are considered. Courts always focus on the best interests of the child, aiming to ensure a stable and loving environment for them.

2. Calculating Child Support Payments

Child support payments are essential for covering the expenses needed to raise a child. The amount of child support is calculated based on each parent’s income, the number of children, and the custody arrangement. The Child Support Agency (CSA) provides guidelines to help determine the correct payment amounts. Ensuring that child support is fair and sufficient helps to meet the child’s needs and maintain their standard of living.

3. Navigating Dispute Resolution

Disagreements over child support and custody can be stressful. It’s vital to have a plan for resolving these disputes. Mediation can be an effective way to reach an agreement without going to court. 

In mediation, a neutral third party helps both parents discuss their concerns and find a solution. If mediation doesn’t work, the court can make a binding decision. Knowing the options for dispute resolution can make the process less daunting and help find a satisfactory outcome for everyone involved.

Emotional and Practical Support During Divorce

1. Strategies for Coping with Stress

Divorce is a stressful and emotional time. It’s essential to find strategies to cope with this stress. Regular exercise, healthy eating, and maintaining a routine can help keep you grounded. Talking to friends, family, or a counsellor can provide emotional support. Finding ways to relax and take care of yourself is crucial during this difficult period.

2. Support Services Available

Numerous support services are available to help you through a divorce. Legal aid services can provide guidance on your rights and responsibilities. Community organisations offer support groups for emotional help. Financial advisors can assist with planning your post-divorce finances. Accessing these services can make the divorce process smoother and less overwhelming.

3. Helping Children Through the Process

Children can find divorce particularly challenging. Helping them understand what’s happening and providing constant support is vital. Keep open lines of communication and reassure them it’s not their fault. 

Trying to maintain a routine can provide consistency and security. Seeking professional help, like child counselling, can also be beneficial. Supporting your children through this time is crucial for their emotional well-being.

Understanding the Divorce Process in Australia

Going through a divorce involves numerous legal, emotional, and practical challenges. Each step, from understanding the legal process and negotiating property settlements to managing child support and custody, requires careful consideration and planning. Being informed and prepared can help ease the stress and ensure a fair outcome for everyone involved.

If you are facing a divorce and need expert legal support from the best divorce lawyers on the Gold Coast, contact Hooper & Mill Family Lawyers. Our team specialises in family law and matrimonial property settlements, offering the guidance and support needed to achieve a fair and equitable resolution!

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Parenting Process

How is a child custody dispute resolved in Queensland without going to Court?

Firstly, parenting disputes in Queensland are dealt with in the same way as for the majority of the Country.

This is because since most States referred their power over children’s matters back to the Commonwealth. Thus, the law concerning parenting after separation, parental responsibility, child support and custody come under Federal Legislation and Courts i.e. the Family Law Act 1975, Child Support Assessment Act 1989 and the Family Court and Federal Circuit Court of Australia.

Under the Family Law Act 1975 the focus is very much towards assisting parents to resolve parenting cases themselves, with the necessity of a Judge determining who children will live with and spend time with being a last resort.

The first step in Parenting Matters – Family Dispute Resolution and the Section 60I Certificate

Prior to commencing parenting proceedings,it is necessary to attend Family Dispute Resolution or FDR. This is in effect a Mediation where an independent mediator trained as a Family Dispute Resolution Practitioner (FDRP) assists the parties to make a parenting agreement, usually recorded in a Parenting Plan.

After the parties attend this mediation, the Registered Family Dispute Resolution Practitioner is required to produce a “mediation certificate” if requested by a party.[1]These certificates are commonly referred to as section 60I certificates and can be issued on any of the following grounds:

  • The client did not attend FDR due to the other party’s refusal or failure to attend;[2]
  • The client did not attend FDR or began attending FDR but the practitioner considered that it would not be appropriate to conduct or continue the FDR in the circumstances;[3]
  • That the client attended FDR and made a genuine effort to resolve the issues;[4] or
  • The client attended FDR but did not make a genuine effort to resolve the issues.[5]

[1]Family Law Act 1975 (Cth) s60I (7).

[2]Family Law Act 1975 (Cth) s60I (8) (a).

[3]Family Law Act 1975 (Cth) s60I (8) (aa) and (d).

[4]Family Law Act 1975 (Cth) s60I (8) (b).

 

Exceptions to needing a Section 60I Certificate

The following exceptions allow a party to commence proceedings without a certificate:

  • There has been abuse of the child by one of the parties;[6]
  • There is risk of abuse of the child if there was a delay in bringing the proceedings;[7]
  • There has been family violence or risk of family violence;[8]
  • The application is urgent;[9]
  • One party is unable to participate effectively in FDR;[10] or
  • One party has contravened Orders that were made within the last 12 months and the Application is in relation to that breach.[11]

What happens if you don’t have a section 60I Certificate?

The court will refuse to accept an Application for filing that does not have a certificate attached or an affidavit of non-filing of dispute resolution certificate with the appropriate exception addressed.

If a party attends FDR but does not make a genuine effort, the court may make an order requiring the parties to go to FDR again and the court might make a costs order against that party.[12]

Other issues before going to the Family Law Court

There are also strict pre-action procedures that have to be followed in the Family Court.[13] These do not exist in the Federal Circuit Court;however, it is good practice to follow them.[14]

Here a party must provide the pre-action brochure to the other party and engage in settlement discussions.[15]Also, forward a notice of intention to commence proceedings.[16] This notice must set out the issues in dispute, the orders being sought, a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).[17]

[5]Family Law Act 1975 (Cth) s60I (8) (c).

[6]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[7]Family Law Act 1975 (Cth) s60I (9) (b) (ii).

[8]Family Law Act 1975 (Cth) s60I (9) (b) (iii) and(iv).

[9]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[10]Family Law Act 1975 (Cth) s60I (9) (e).

[11]Family Law Act 1975 (Cth) s60I (9) (c).

[12]Family Law Act 1975 (Cth) s117.

[13] Family Law Rules 2004 r1.05.

[14] Federal Circuit Court Rules 2001 r1.03.

 

The party receiving the Notice is required to respond to this with their position[18]and hopefully this is a further incentive for the party to resolve their dispute without the Court making a decision.

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute.[19]

The pre-action procedures specifically state the parties must have regard to the following matters in relation to children:

  • The best interests of the children;[20]
  • Maintaining good co-parenting relationship;[21]
  • The potential damage to a child who is involved in the dispute;[22] and
  • Not seek orders that are not in the best interests of the children.[23]

The outcomes in custody disputes –without having to go to Court?

If an agreement can be reached between the parties in dispute there are several options for record the agreement:

  • Parenting Plan;
  • Consent Order.

A Parenting Plan is simply a written record of the agreement and only requires that the agreement be in writing, signed and dated.[24] A Parenting Plan is not enforceable, however if there is a further dispute requiring Court action the Judge will have regard to the most recent Parenting Plan when making a Parenting Order.[25]

[15] Family Law Rules 2004 Schedule 1 Part 3 (1).

[16] Family Law Rules 2004 Schedule 1 Part 3 (4).

[17] Family Law Rules 2004 Schedule 1 Part 3 (5).

[18] Family Law Rules 2004 Schedule 1 Part 3 (6).

[19] Family Law Rules 2004 Schedule 1 Part 1 (4).

[20] Family Law Rules 2004 Schedule 1 Part 1 (6) (a).

[21] Family Law Rules 2004 Schedule 1 Part 1 (6) (b).

[22] Family Law Rules 2004 Schedule 1 Part 1 (6) (c).

[23] Family Law Rules 2004 Schedule 1 Part 1 (6) (d).

[24] Family Law Act 1975 Section 63C.

A Consent Order is made with a higher degree of formality and is enforceable. Even though the Consent Order is the party’s agreement the Court can only make the Order if legislative requirements for Parenting Orders are followed, for example, the Court would only make the Order if the best interests of the subject children were the paramount consideration.[26]

For a Consent Order an appearance in court is not necessary and the Orders can be made “in chambers” with the documents being sent to the Court by post.

Hooper Mill Family Lawyers at Victoria Point and Hooper Mill Family Lawyers on the Gold Coast can assist parents in mediation and to resolve parenting matters before you have to go to court. Peter Hooper of our office is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner able to provide FDR to people wanting to reach their own agreements.

[25] Family Law Act 1975 Section 65DAB.

[26] Family Law Act 1975 Section 60CA.

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Coolangatta Office

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Mill Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

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Handling divorce at Christmas with the kids

Christmas and holidays are common sources of conflict when making custody arrangements. Which parent gets to spend the actual day with their child? Does the child have to go through two Christmases? Your first Christmas post-divorce will be difficult but we have some advice to help you get through.

Dr Robert Emery, PhD, advises parents that sometimes it’s better not to be friends post-divorce. Sometimes it works and couples reconcile (though this is rare). But when the relationship is beyond salvaging and there’s lingering bitterness, he recommends the following: treat your ex as a business partner. You’re bound together by the child you have, and there’s still a job to do. Dr Emery further explains how to handle the holidays in his blog on Psychology Today:

  • Remember that Christmas isn’t about you or one-upping your ex through the gifts you give. Explain the values that come with Christmas to your kids (thankfulness, forgiveness etc)
  • Make new traditions with your kids. If they don’t spend the actual day with you, create your own brand of Christmas that year.
  • Don’t avoid your ex-partner. Communicate and schedule visiting times, and even presents. This way you both know your child’s movements and you don’t double up on gifts.

Divorce and the whole process will hit the kids hard, writes, Christina McGhee. Ultimately, it’s up to the parents to explain the situation as best they can, and what’s going to happen next. Christina urges parents to be transparent about how the upcoming Christmas will be different to those in the past. She also recommends these steps to keep sanity, perspective and emotions in order:

  • Let the children’s needs be the backbone of planning your Christmas
  • Explain that different doesn’t have to be a bad thing. Rather, it’s a chance to start new traditions with each parent.
  • Make sure you care for yourself, whether it’s for an hour or a day. Your emotions are going through the wringer and the children are going to pick up on it if you don’t stay calm.
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How a child custody lawyer earns their stripes

A child custody lawyer is no stranger to disputes, separations, and court proceedings. They’ve seen and experienced it all. Having a lawyer like this during a difficult time is best for the parent who doesn’t know where to start or who to turn to. The lawyer’s sat through hostile disputes, the more ‘civilised’ mediations, and custody matters going to court.

Despite this, some people might ask:“is this person qualified?”. Skepticism is natural and, of course, you want the best. Any legal practioner you meet has worked long and hard to get to where they are today. They’d have gone to university, then proceeded to Practical Legal Training. This is required in all states except Western Australia. Completing the practical training earns them a Graduate Certificate in Legal Practice. The prospective lawyers must then apply for a license to practice and admission to the law society in their state. Having a membership with a society puts their name on a “roll call” of lawyers that are qualified to work. 

Lawyers are constantly educating themselves; they attend seminars and receive updates from the law societies they’re registered with. Every few years, attourneys and law practices must update their licenses in order to keep working.

After reading all the above information, you know your lawyer is qualified for at least general practice. Many lawyers and solicitors commonly go on to study their masters, attain graduate diplomas, and have memberships with the Queensland Law Society and the Family Law Practitioners Association. Child custody lawyers, or at least other employees in the firm, can work as solicitors and mediators. You’ll want these people on your side during dispute resolution, something compulsory in every custody case.

There is no official title for ‘child custody lawyers’ as such, but there’s attourneys who’ve got experience with parenting disputes. Offices like Hooper Mill Family Lawyers deal with cases involving custody issues, domestic violence, and property law among others.

A child custody lawyer goes through years of formal education but never stops learning. They earn their stripes at university, through traineeships, and long hours. Clients come to them during one of the most difficult periods they’ll ever face. But the lawyer has seen and experienced it all.

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Child Focused and Child Inclusive Mediation: What To Expect

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46; McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

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Child Inclusive Mediation: Facts and Stats

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

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Christmas, Parenting Orders and Family Law

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

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Parenting – Can I get equal time? Or shared care week about time?

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.

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