Children

When people separate there are usually no Court Orders in place regarding the care arrangements of the children. There is no hard and fast rule as to who should have the primary care of the children. There is no presumption that the children should live with the mother.

The law

In determining the care arrangements for the children, the Court must follow the Family Law Act.

Children

The first determination a court must consider is whether an Order should be made for shared or sole parental responsibility.

Shared parental responsibility is where both parents have the ability to make significant long term decisions for the children. These decisions usually include where the children will go to school, medical issues, and religion. The Family Law Act provides that both parents must discuss and try to come to a joint decision regarding these issues. It does not state that the parents have to reach an agreement.

The majority of matters will allow for shared parental responsibility. In some circumstances it may not be appropriate for shared parental responsibility to be ordered.

The Court may decide not to make an order for shared parental responsibility where:

  1. There has been, or is a risk of, physical or psychological abuse to the child; or
  2. A parent has engaged in family violence;
  3. Having regard to the specific circumstances of the matter, it may be impractical
    (eg. one parent doesn’t have capacity to assist in the decision making process, or the other parent is difficult to locate etc).

In circumstances where a parent has either abused a child or has assaulted either a child or a family member it is possible for the Court to order that parent to be excluded from the long term decisions of the child.

Shared parental responsibility would not likely be ordered in times where it is impractical for both parents to be involved in decision making. This would normally occur when one parent is voluntarily absent from the child’s life, or is uncontactable. Where one parent does not have the capacity to make decisions for the children due to mental incapacity or drug dependency.

In circumstances where there Court does not consider it appropriate to make Orders for shared parental responsibility they will make Orders for sole parental responsibility.

Where shared parental responsibility is ordered, the Court must then consider whether it is appropriate to make an Order for shared time. An Order for shared time does not necessarily mean week on week off time. The manner in which shared time may be ordered will depend upon the age of the child and circumstances of each particular case. It many cases where the child is young, shared time has been ordered in terms of 3 days on 4 days off, 4 days on 3 days off arrangement.

It is important to note that a Court must only consider making a shared time Order. It is in no way bound to order shared time.

When determining whether shared time should be ordered the Court will consider the factors as outlined in section 60cc of the Family Law Act.

Some of these factors are as follows:

Nature of relationships between the child and each of the parents and other significant persons in the child’s life (i.e. other siblings, grandparents, step parents etc);

  • capacity of each parent to care for the child;
  • wishes of the child;
  • willingness of each parent to promote the relationship between the child and other parent;
  • the likely effect to the child of any changes to the child’s circumstances;
  • the maturity, sex, lifestyle and background of the child or child’s parents
  • attitude to parenting;
  • any cultural issues;
  • whether the order made is least likely to lead to the instigation of further court proceedings.

If the Court finds that an Order for shared time is not appropriate, the Court must then consider making an Order for the child to live with one parent and spend significant and substantial time with the other.

Significant and substantial time has been defined to mean time on the weekend, during the week, holidays and special occasions.

It is important to understand that every matter is different and will depend upon the child’s age, how far apart the parents live, the practical arrangements for the child etc. Again the Court will consider the section 60cc factors to determine what Order is in the child’s best interest.

If both parents have come to an arrangement for the children there are 3 methods to determine the arrangements:

The benefits of this agreement is that it allows for flexibility between the parents that can easily adapt according to change.

The disadvantages of this agreement is that where the parents have disagreements it becomes he said she said and as such is fraught with potential problems if the parents are unable to communicate effectively. A verbal agreement is unable to be enforced.

This is an agreement where the arrangements for the children are reverted to writing and signed by the parties.

This agreement is not enforceable however in many matters it assist parties to clarify the arrangements for the children. It allows flexibility in that the terms can be changed by agreement between the parents.

The disadvantages to this agreement is that neither party can be forced to comply with the agreement and as such is little more than a gentlemens agreement. In saying this the agreement can be used as evidence of the arrangements if the matter was to proceed to court.

The final way to make arrangements for the children is to enter into a Consent Order. A Consent Order is an agreement in writing that is signed by both parties and filed in the court. You do not need to physically appear before a magistrate or judge. Your agreement will be determined without either party being present and the judge will then analyse the agreement to ensure that it is in the best interest of the child. If it is, the judge will seal the orders (place a red stamp on the document) and send it back to each party.

Once sealed the Consent Order is binding on both parties and can be enforced by the Court. If one parent decides not to comply with the order they are at risk of being punished by the Court.

The benefits of the Consent Order is the ability to go back to Court to force the other parent to comply with the Orders. Usually Consent Orders are framed in the terms “unless otherwise agreed by the parties”. This means that if both parents agree to change the terms of the agreement then they can do so, but both parents must be in agreement to the change. If one parent wants to change the arrangements and the other does not then the Orders cannot be changed.

Consent Orders can be as specific or as general as you choose. However the more specific the Orders the more difficult it is to account for every possible change in future events.

The disadvantages to a Consent Order is that if circumstances change in the future you may need to go through the Court again to obtain new Orders if the other parent is unwilling to change the Orders. If you do not comply with the Orders you risk a fine, punishment or at worst imprisonment and as such Orders should not be breached lightly.

The Orders in relation to children’s matters can be vast and varied however standard Orders that you may wish to consider are as follows:

  1. Whether there should be shared parental responsibility or sole parental responsibility;
  2. Who the child will live with;
  3. Who the child is to spend time with and the terms for that time;
  4. Holiday arrangements for the child;
  5. Special day arrangements including birthdays, mother’s day, father’s day, christenings, weddings graduations;
  6. Telephone contact;
  7. Christmas day arrangements;
  8. Access to educational information;
  9. Access to medical information;
  10. Advising each other of a medical emergency;
  11. Denigration clauses (preventing each parent from insulting the other to the children);
  12. Preventing or permitting the other party from relocating too far away from their current residence;
  13. Who is to care for the child if the other parent is unavailable;
  14. Whether a passport is to be issued for the child and if so terms for signing application and safe custody;
  15. Travel overseas or interstate clauses;
  16. Changeover arrangements if at school or not at school.

If you are unable to come to an agreement concerning the child, you may need to bring an applicant to the Court for Orders in relation to arrangements for the child.

Before you can commence proceedings in the Family Court you will need to attend mediation with the other parent and make a genuine attempt to reach an agreement in relation to the arrangements for the children. Only once the parents have done this will each parent be issued with a section 60i certificate. This certificate is necessary to be able to commence proceedings in Court for children’s matters.

If the other party refuses to attend the mediation or does not make a genuine attempt to reach an agreement then they will not be issued with a section 60i certificate but you will. This will enable you to commence proceedings.

The mediation needs to occur with a qualified family dispute resolution practitioner. Mediation can be obtained through private organisations or government funded organisations. Both organisations have their advantages and disadvantages.

Private mediations may cost between $3-4,000 for a mediator on average if the mediation goes ahead however can usually occur quicker with the added benefit of having a lawyer present if you choose. Further if the other parent refuses to attend, the mediator may reduce the price to simply seeking payment for the cost of issuing a certificate.

Government mediations do not cost you anything to attend however due to the high demand the average time for a mediation to occur is approximately 3 months but vary from each organization. Lawyers are not permitted to be present during these mediations.

If domestic violence is present to such an extent as to impede a parent’s ability to negotiate, the mediator will determine whether the matter is appropriate for mediation and if not will issue a section 60i certificate to the parents.

If the matter is urgent you may be able to file an Application with the Court without the necessity of attending mediation.

To commence proceedings you need to complete and file the following documents:

  1. Initiating Application;
  2. Affidavit;
  3. Section 60i Certificate or Non-compliance with section 60i certificate document;
  4. Notice of Risk;
  5. You must also pay the filing fee or file a health care card.

You will need to file 3 copies of the Initiating Application, Notice of Risk and each Affidavit in the Court.

You must then have someone over the age of 18 years give a copy of the documents to the other party.

Initiating Application

The Initiating Application is the form to be used to outline for the Court the Orders you wish the Court to make. There will be two sections for you to list the Orders sought. The Orders will be Interim Orders and Final Orders. Interim Orders are those temporary orders you wish the court to make until the matter can go to a hearing. Final Orders are those you wish the court to make once the matter has reached a hearing. Both Interim and Final Orders can be the same or different depending on the circumstances.

Affidavit

The Affidavit is the evidence you want the court to consider when determining what orders to make. It is in essence your story. It’s important that your Affidavit is limited to only matters within the writer’s direct knowledge. The Affidavit should not contain comments that are third hand or are merely assumptions of events. For example you can say “x said words to the effect of ‘you are a horrible mother and will never see the children again’. X said this with a raised voice.” you cannot say “x abused me”.

It is also important that the paragraphs are numbered and succinct. A useful tool is, if the information you wish to include in the Affidavit does not fall under one of the headings outlined in section 60CC then you need to consider whether that information has any place in the Affidavit.

At an Interim hearing each party is limited to only one Affidavit unless the evidence cannot be given except by another person.

It is important to turn up on time for your matter. If you are late and your matter is heard you could run the risk of orders being made against you.

At the interim hearing you will not be required to cross examine any witness. Rather the court will rely upon your Affidavit to determine whether the Interim Orders sought should be made or any other orders necessary to progress the matter to the final hearing. As such you need to direct the court to the necessary sections of your Affidavit and the other persons Affidavit to assist the court with their decision.

In addition to making orders to determine who the child should live with and spend time with on a temporary basis the Court may also make orders for the following issues:

  • a family report to be prepared;
  • whether an independent children’s lawyer should be appointed.

At final hearing all parties or persons giving an Affidavit will need to give evidence and be present for cross examination. This is where the evidence is tested and each party attempts to put forward their own case to the judge. The judge will then consider the evidence and give his or her decision. This will then be converted into typed orders and sent out to each party in a couple of weeks.

If one party does not comply with Court Orders it is open to a party to bring an application to the court for contravention of the orders.

Before anyone should file a contravention for orders in Court you should consider the wording of the orders and ensure that a person has in deed not complied with the literal wording of the orders. For example: the Orders state that you are to collect the child from the other party’s residence at the end of the other party’s time with the child. You and the other party then verbally agree to change these arrangements so that the other party will deliver the child to your residence at the end of their time with the child.

If the other party then changes their mind and does not deliver the child to you then this will not be considered a breach of the Orders. You would have to collect the child from the other party as detailed in the Orders.

Before any application is brought to the court for contravention it is suggested that a letter should be written to the other party outlining exactly the clause and wording of the orders that is proposed to have been breached and how the other party is deemed to have breached the order and seeking that they either immediately cease the offending behavior or rectify the breach immediately. If the behaviour persists then an application may be brought to court.

To prove a contravention of the orders a person must show:

  1. That a person has intentionally breached the orders; or
  2. Not made a reasonable attempt to comply with the orders; or
  3. Intentionally prevents a person who is bound by the order to comply with the order; or
  4. Aides and abets a person in the commission of the breach; AND
  5. There is no reasonable excuse for breaching the order.

It is a defence to a contravention application if a person can show a reasonable excuse for breaching the orders. A reasonable excuse is where:

  1. They have either intentionally breached the orders; and
  2. Believe the breach is necessary to protect the health and safety of a person; and
  3. The breach of the orders continued for no longer than reasonably necessary; or
  4. The person did not understand the terms of the orders.

If the court finds that a party has breached the orders the court can choose to make the following orders:

  • compensatory contact;
  • fine;
  • order attendance at a post separation parenting course;
  • enter into a bond;
  • perform community service;
  • pay some or all of the legal costs of the other party.