Consent Orders Archives

First a bit of encouraging news: When we think of divorce proceedings and custody arrangements, it can be easy to fall prey to horror scenarios (we’ve all seen Kramer vs. Kramer after all).

The thought of long, ugly custody battles, unnecessary suffering for the children… as if ending a relationship wasn’t hard enough.

However, very few divorces and separations actually get that nasty. In fact, only 3% of Australian parents go through the court system to reach a childcare agreement post-separation. One in five sets of separating parents prefer to go with a family dispute resolution service or use their solicitors to finalise their custody arrangements; however, three out of five custody arrangements are simply agreed upon by the parents and then finalised during the separation or divorce settlement.

Mothers’ Rights vs. Fathers’ Rights – No longer a thing

The idea of one parent’s rights overruling the other’s is no longer really applicable. Since the Australian Family Law Act 1975 the most important concern when it comes to custody settlements is the best interests of the child/ren. As a rule, the Court believes that the child/ren have a right to a meaningful relationship and contact with both parents post separation. If a custody dispute ends up before the courts, the court will make decisions not based on the parents’ gender but on their ability to care for their child/ren.

There are a number of factors taken into consideration during this process:

Any history of domestic violence of either parent
How much a parent works; i.e. how much time they have to care for their children
Which parent’s accommodation is best suited to housing the children
Any history of alcohol and/or substance abuse of either parent

It is increasingly rare that children themselves are required to give evidence or statements in court, as the aim is to minimise any trauma associated with the separation/divorce process. However, once children are over the age of 13, they can demand to have their say in the proceedings and be part of the decision making process.

Parental Responsibility vs. Custody

Since 2006 Australian courts operate under the assumption of shared parental responsibility (Family Law Act (Shared Parental Responsibility) 2006); which means that each parent is responsible for the child’s welfare in equal parts.

However, this does not mean the child/ren will automatically be required to spend equal amounts of time with each parent. The physical custody agreement will still be worked out depending on each family’s individual circumstances.

Shared parental responsibility means both parents

Are responsible to make long-term decisions regarding the child/ren (i.e. which school they attend, their place of residence, medical treatment, religious education)
Are required to support the child/ren financially within their individual means
Are being held responsible for the child/ren’s physical and emotional welfare

Equal parental responsibility even applies in cases when one parent has very little physical contact with the child/ren; i.e. if they live in a different state or country. Big decisions regarding the children have to be made by both parents, unless the courts have awarded sole parental responsibility to one party.

Rights and Responsibilities

According to Australian Family Law, children have two main rights when it comes to separations and divorce. The first is the right to benefit from a meaningful relationship with both parents, and the second is the right to be protected from physical, emotional, mental and sexual harm.

The tenets override all other consideration in divorce proceedings and custody disputes.

Parental Rights

Parents’ rights are very similar. Each parent has the right to a meaningful relationship with their child/ren, in a capacity and context that works for the family. However, each parent also has the right to be protected from harm; which means that in cases involving domestic abuse, domestic violence or substance abuse, the court can withdraw one parent’s parental responsibility and prevent them from contact with their child/ren and former partner if they see fit.

Child Support Payments

In most separation/divorce cases, the shared parental responsibility is maintained; which means both parents are responsible for the child/ren’s welfare. This can take many shapes, as no two family’s are the same, however, it most often means that the parent with less physical custody is required to pay some form of child support to the parent caring for the child/ren the majority of the time. Child support payments are designed to help pay for essentials required by the child/ren and relieve financial stress on the primary carer, who is likely to be at a disadvantage when it comes to earning potential – basically, looking after the kids takes time and pays not-at-all, so whoever works more and makes more money has to chip in. The amounts of child support can vary dramatically, depending on the income of each parent.

Relocation

If shared parental responsibility remains post separation, neither parent is allowed to relocate with the child without consent from their co-parent. This doesn’t mean you can’t move house within your general area, of course, but it does mean that interstate or overseas moves have to be discussed and agreed upon with your former partner. Each parent is entitled to veto a long-distance relocation if it would mean their contact with the child is severely diminished; however, very few disputes about relocation are brought before the courts.

If a parent relocates the child without their co-parent’s consent, the parent left behind can apply for Recovery Orders and demand the child be returned to accommodation closer to their own or be transferred into their custody. Again, this sounds dramatic and scary, but it is only necessary in extreme cases and very few families have to endure this sort of trauma.

Protection orders (also known as domestic violence orders) aim to prevent future incidents of domestic or family violence. They also aim to hold those responsible for domestic violence accountable.

Protection orders limit the behaviour of the individual responsible for the domestic violence (the respondent). There are two types of domestic violence orders: protection orders and temporary protection orders.

Protection orders are produced by a magistrate in court to protect individuals in domestic or family violence situations. Protection orders usually last for five years, however they can be extended or reduced based on the time period the court deems appropriate.

Temporary protection orders are made if you are in urgent, immediate danger. These orders only last for only a short time and protect those experiencing violence until their next hearing where the magistrate will decide on a full protection order.

In order to obtain a protection order, you must make an application to the court. This application can be made by:

The individual who wishes to be protected (the aggrieved);
A police officer;
A solicitor;
An individual authorised by aggrieved to make the application on their behalf; or
The aggrieved guardian or attorney under enduring power of attorney.

Protection orders protect individuals who have been in these types of relationships:

Intimate personal relationships (such as married, de facto, registered relationship, engaged, or a couple);
Family relationships (parent of a child, your relative); and
Informal care relationships (when one individual is dependent on another individual to undertake daily activities such as dressing and cooking).

Any individual named in the protection order (such as the respondent or the aggrieved) can apply to change the order. These elements of the order can be changed:

The conditions of the order;
The individuals named in the order; and
The length of the order (so it ends sooner or gets extended).

When considering whether or not to change an order, the court will consider:

The wishes of the individual applying to change the order;
Whether or not any individual named in the order was pressured;
The safety, wellbeing and protection of any individual named in the order; and
That the change to the order would not adversely affect any individual named in the order.

Breaching a protection order is an offence in Queensland. It carries a maximum penalty of three years imprisonment or a fine of almost $15,000.

If the respondent has already been convicted for breaching a protection order in the previous five years, the penalty increases to five years imprisonment and a fine of almost $30,000.

If you are considering applying for a protection order, No Lawyers’ Family Law Resources can supply the information you need to be confident that your decision will be legally sound.

The Family Law Act 1975 places considerable importance on children being able to maintain a significant relationship with their parents. However, it is important to consider that a balance must be reached between maintaining a relationship with both parents and protecting a child from any risk of harm.

Court supervised time achieves this balance in situations where the relationship between parent and child can be maintained in a safe environment with no risk of harm to the child. The court may order supervised time if:

The child is at risk of psychological or physical harm if they spend time with a parent who may be violent;
The child is at risk of sexual abuse; or
The parent’s behaviour is not in the best interests of the child, for example, if the parent has a significant addiction.

The child’s time with the parent can be supervised by family and friends, contact centres or private supervision organisations. The other parent cannot be the supervisor as this may cause conflict.

The role of any supervisor is to ensure parent and child are spending time together in an environment that is safe and has no risk of harm. Supervisors must monitor the interaction and conversations between a child and their parent and need to have a good understanding of what is considered appropriate and inappropriate behaviour, and when they need to intervene.

It is essential that court supervised time is relaxed and comfortable. Therefore, a trusted family member or friend should be chosen as the supervisor if that is what you want for your situation. Being a supervisor also requires a significant time commitment, so the individual you choose should be aware of this before accepting the responsibility.

Contact centres can offer you a supervision service at a discounted rate. If you wish to undertake court supervised time through contact centres, there is a likely chance you will be placed on a waiting list due to the high demand of the service.

Most contact centres will offer you indoor and outdoor spaces for the supervised time, including a range of games suitable to your child’s age. Contact centres will also offer services such as staggered arrival time between parents to reduce the risk of conflict arising.

Private supervision organisations are similar to contact centres; however, their fees are higher. They offer greater flexibility as well as more mobile services, which means that parents and children can spend time together outside of the premises of the supervision service provider.

If the other parent to your child has requested that your time with the child be supervised, it may not seem like the best outcome; however, court supervised time is often a great opportunity to rebuild a stronger relationship with your child, and is a better outcome than having no time with your child at all.

If you are struggling to consider the best needs for your child, No Lawyers’ Family Law Resources can help you understand how to proceed to achieve the best possible outcome for your family.

Going to court can be an overwhelming experience, especially if it is your first time. All cases are different and your options will depend on the specific circumstances of your case.

There are a variety of disputes that can arise in the Family Court, such as parenting orders, property settlement, child support or spousal maintenance.

Often, couples can resolve these disputes by not going to court and instead seeking out other methods such as mediation, where couples discuss their issues with a third party.

However, some couples will be unable to reach a mutual agreement without consulting the court.

Many individuals wonder if taking their case to court will result in justice. Unfortunately, court cases do not always end up with an outcome that satisfies both parties. Taking your case to court will result in a decision being made or a dispute being resolved, which does not always appear to have delivered justice.

You are able to represent yourself in a Queensland court, however you may wish to contact a lawyer to discuss the more complex legal matters that you may find difficult to navigate without legal training or experience. If you choose to represent yourself, you must have knowledge about the law and the court process.

Some individuals choose to represent themselves rather than seeking legal advice if they cannot afford the fees, do not qualify for a grant of legal aid, do not want to engage a lawyer, or believe they can handle the process on their own.

The cost of legal representation will depend on your individual situation. For example, for some cases, only one court appearance is required, however for other matters, more than one court appearance is required, rendering the process more expensive. However, engaging a lawyer and allowing a professional to take control of your case can often remove a lot of stress involved in the court process.

There are both advantages and disadvantages of going to court. Advantages include finding closure with the court’s decisions, having legally enforceable orders that can result in consequences if breached, utilising the powers and methods of the court, reaching a final outcome, and the urgency that can be brought to your case if needed.

Disadvantages include the possibility for court cases to be delayed or extended, the cost of legal fees, the risk of the situation becoming emotionally draining, and the possibility of parties not agreeing with or being content with final orders made in court.

The decision you make should be based on your individual circumstance and whether or not you and your partner can come to mutual decisions without the court’s help.

One Lawyers’ Family Law Resources can help you consider what is the best decision for you to achieve the outcome to suit your situation and specific needs.

You might have heard about spousal maintenance when discussing property settlement arrangements or divorce in general.

Spousal maintenance can either make you responsible for financially supporting your former partner, or ensuring you receive financial assistance from your ex-partner.

This is a complex situation. So, to understand how it works, here is some important information about spousal maintenance.

What is spousal maintenance?

The Family Court of Australia defines spousal maintenance as “financial support paid by a party to a marriage to their former husband or wife, or by a party to a de facto relationship that has broken down to their former de facto partner, in circumstances where they are unable to adequately support themselves.”

In short, spousal maintenance is like child support – but for adults.

It works by giving your former spouse or partner the means to maintain their needs: either by providing periodic payments for an amount of time, a lump-sum payment or a transfer of assets.

How to know if you are entitled to spousal maintenance?

Spousal maintenance only occurs if the paying spouse or partner is reasonably able to do so and only if their former spouse or partner is unable to support themselves for any of the following reasons:

Having the care of a child (who is not yet 18 years old) of the marriage or de facto relationship
They have an age, physical or mental capacity that hinders the person from obtaining and maintaining meaningful employment
Any other adequate reason stated in Section 75(2) of the Family Law Act 1975

For de facto couples, spousal maintenance may be applied for if the relationship broke down after 1 March 2009, provided certain criteria has been met.

When making decisions for spousal maintenance, the Court takes into consideration the matters discussed in Section 75(2) of the Family Law Act 1975 (“the Act”) for married couples and Section 90SF of the Act for de facto couples.

Generally speaking, these are the key criteria for both married and de facto couples that the Court uses when assessing a person’s entitlement for spousal maintenance:

The age and state of health of each person
The income, property and financial resources of each person
the physical and mental capacity of each person to gain appropriate employment
Whether either person has care or control of a child of the relationship
The commitments of each person that are necessary to enable that person to support either themselves, a child or another person they have a duty to maintain
The responsibilities of either person to support any other person
The eligibility of either person for a pension, allowance or benefit
A standard of living that is reasonable in the circumstances
The extent to which payment of maintenance would increase the earning capacity of the payee spouse or partner by enabling that person to undertake a course of education, training, establish themselves in a business or obtain an adequate income
The effect of any proposed Order on the ability of a creditor to recover a debt from a person of the marriage or de facto relationship
The extent to which the payee spouse or partner has contributed to the income, earning capacity, property and financial resources of the other person
The duration of the relationship and the extent to which it affected the payee spouse or partner’s earning capacity
The need to protect a person who wishes to continue that person’s role as a parent
Financial circumstances relating to cohabitation with another person
The terms of any Court Order made or proposed to be made concerning the property of the couple, including any child support that a person has provided, is to provide, or might be liable to provide in the future for a child of the relationship
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be considered
The terms of any financial agreement that is binding on a person of the marriage or de facto relationship

Keep in mind that the former couple’s standard of living is not an obligatory factor, but just more of a consideration.

It’s actually a misconception to assume that both people are entitled to the same standard of living as when they were together.

What are the 3 types of spousal maintenance?

There are 3 types of spousal maintenance which a separated person can apply for:

Urgent maintenance

The Court can make an Order for urgent maintenance pending the finalisation of the proceedings if:

A person is in immediate need of financial assistance; and
if it is not practicable in the circumstances to determine immediately what Court Order, if any, should be made.

Interim Order for maintenance

This is a Court Order that obliges the payee to pay spousal maintenance to the other person until a further Order is made or final settlement has been achieved.

Final Order for maintenance

This is a Court Order for spousal maintenance which forms part of the final settlement and is generally for a specified time or a lump sum amount.

When do maintenance orders become terminated?

In the case of married couples, Section 82 of the Family Law Act 1975 states that an Order for spousal maintenance will end during any of these situations:

The person receiving maintenance dies
The person liable to make payments under the Order dies (unless in certain circumstances where the Order is expressed to be binding upon the personal representative of the deceased)
The person receiving maintenance becomes married again (unless in special circumstances)

These factors are also the same for de facto couples, as detailed in Section 90SJ of the Family Law Act 1975.

Are there time limitations in the application for spousal maintenance?

For married couples, the application must be brought to the Family Court or Federal Circuit Court within 12 months of the date of a divorce order becoming final. For de facto couples, on the other hand, the application for spousal maintenance must be brought before the Court within 2 years of the date of separation.

The Court has the right to refuse the spousal maintenance application if this time has passed.

However, it is possible to permit an application for spousal maintenance to proceed out of time – given, of course, the Court is satisfied that:

One partner or the child would suffer hardship
If the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit at the time of making the application

On application by a person, the Court has the power to modify spousal maintenance orders at any given time.

To make amendments in a Spousal Maintenance Order, the following conditions must be met since the order was made or last varied:

The circumstances of one or both persons have changed
At least 12 months has elapsed since the Order was made or last varied and the cost of living has changed enough to justify modifying the Order
Where the Order was made by consent, the amount payable under the Order is not proper or adequate
For an Order binding on a personal representative of a deceased estate, the circumstances of the estate justify modifying the Order
Material facts were withheld from the Court, or false material was given to the Court when the Order was made or last varied

If in doubt, always seek legal advice about spousal maintenance.

Separation and divorce can be a confusing time for everyone. Emotions are running high and the stress can make it a tough time to make decisions, especially when it comes to parenting arrangements.

During times like this, it’s easy for parents to get caught up in negotiating the terms involved in parenting plans and parenting arrangements; but at the end of the day, the most important thing to consider is what’s in the best interests of a child.

The Family Court system defines two types of parenting arrangement considerations to factor in when it comes to a child’s best interest: primary considerations and additional considerations.

What are the primary considerations in parenting arrangements?

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

As you can see, the wellbeing and protection of the child’s immediate needs are the primary considerations the Court will consider when they are making decisions around parenting arrangements and Court Orders.

Because of this, the Court places greater emphasis on primary considerations.

What are additional considerations in parenting arrangements?

The Family Court has additional considerations that it takes into account, such as the child’s personal preferences and relationships as well as emotional, intellectual and physical needs.

As the name implies, these are additional considerations to a child’s immediate well-being – however, they’re still relevant in Parenting Agreements and Court Orders.

These can include:

any views and wishes of the child that the Court believes are relevant in a separation, such as a child’s maturity and level of understanding of the situation
the relationship between the child and each individual parent
the relationship between the child and other significant people in their family life (such as grandparents, step-parents or relatives)
each parent taking up the opportunity to: participate in making major long-term decisions about the child, spending time with the child and communicating with the child
each parenting fulfilling their obligations to nurture and look after the child
the likely effect of any changes in the child’s circumstances, including separating the child from: either parent, and any other significant person (such as grandparents, step-parents or relatives)
the Court must also consider whether the practical difficulty and expense will significantly impact the child’s right to maintain a relationship with both parents regularly
the Court will also consider the capacity of each parent or other significant person in their life, in their ability to provide for the physical, emotional and intellectual needs of the child
the child’s maturity, gender, lifestyle and background
the parents’ maturity, gender, lifestyle and background
if the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy their culture; and the likely impact any parenting orders will have on that right
the parent’s attitude to the child and responsibilities of parenthood
any family violence involving the child or a member of the child’s family
if there is, or has been a family violence order: the nature of the order, the circumstances in which the order was made, any evidence in those proceedings, any findings made by the Court in those proceedings; and any other relevant matter
making an order that would be least likely to lead to further Court proceedings; and
any other fact or circumstance that the Court thinks is relevant.

These factors are relevant when determining a child’s best interests in a separation.

While the Court places more weight on primary considerations, these additional considerations are still important in Court Orders and Parenting Arrangements.

Everyone’s situation is unique, which is why the Court tailors its decisions around these factors based on individual circumstances. However, the child’s best interests will always be the main focus during a separation.

If you’re unsure, seek legal advice about your parenting arrangement, separation or divorce.

In this day and age, shared parenting has become more common than ever, and sorting out parenting arrangements for your children in combination with parental conflict can take a huge toll on both parents and children alike. During these times, it’s understandable for parents to become preoccupied with the emotional stresses of the split, that they may forget to focus on the needs of their children.

This can lead to mistakes which can have a detrimental impact on the outcome of your case or work against you when it comes to parenting arrangements and Court Orders.

Because of this, it’s important to be prepared with the likely obstacles you will face – not only legally, but emotionally and financially as well.

Below is a list of the frequent mistakes parents can make when involved in parenting separation matters, so you know what to avoid for the good of everyone.

Criticising the other parent to the child

This is, unfortunately, the most common mistake parents make and can be displayed by both mothers and fathers alike in many cases.

For most parents, the reality is that their child is very aware of the conflict that goes on between both sides of the separation, as well as the interactions between both parents. This leads to the child acting as a ‘neutral listening post’.

What many parents fail to realise is that, amid their heightened emotions, the child can suffer in many different ways. A child’s emotional wellbeing can be impacted by the negative views of one parent towards the other, making them feel pressured to take sides.

It is important to remember that children are often curious and will likely overhear your conversations with friends and family. Bearing this in mind, be cautious of how you speak about your spouse when your child is around, as it can undermine the relationship that your child has with the other parent.

As children grow older, even into adulthood, they tend to look at their parent’s behaviour and may judge you if they perceive you have undermined their relationship with the other parent.

Apart from the impact on your children, denigrating the other parent may also cause the Family Court to look unfavourably upon you as Judges are very aware of the impact this has on children. Such behaviour can see parenting arrangements and Court Orders change drastically, simply due to how one parent refers to the other.

The most effective way to combat this mistake is to ensure that you have proper channels of stress relief.

Speaking to a Psychologist, a Psychiatrist or a GP is a good way to ensure you have the emotional support necessary to cope with your concerns over your separation by providing you with assistance.

Trying to make your child feel sorry for you, even if unintentional

This issue is referred to by the Family Law Courts as “attempting to align a child’s views to those of a parent”, or parental alienation.

This is a particularly harmful act, as it has the same consequences upon your child as discussed in item 1 above. It can also demonstrate to the Court you are not child-focused and suggests an issue of your inability to co-parent and act in the child’s best interests.

It’s also not helpful for your own relationship with the child as it effectively reverses the parent/child role, with your child taking on the role of the protective parent. Children require your guidance, and not the other way around.

Such behaviour can be seen as malicious, with a deliberate intention to hurt the other parent – such as telling the child that the other parent doesn’t pay for anything and to ask them for money, or telling the child that the other parent is a bad person for whatever reason.

However, subtler, unintentional forms of drawing sympathy can also cause harm, such as crying in front of the child, telling the child that the other parent is taking you to Court and expressing distress over the family breakdown such as providing details about not being given any money or being ‘kicked out’ of the family home.

The potential impact your sub-conscious behaviour can have on your child can be significant and, in most cases, cannot be undone. So, you must always be mindful of your actions and behaviour around your child during a separation or divorce.

Not trying to communicate with the other parent

This is a major issue for two reasons, the most important of which is that your children need to see their parents communicating for the good of their well-being. Failure to communicate with the other parent can be extremely detrimental to many aspects of your child’s life, including medical care, education and social development.

Children miss out on things when their parents can’t communicate. They also learn to play one parent off against the other, trying to get what they want.

The second reason is that the Family Court may take a negative view against you if you fail to try to communicate with the other parent.

In parenting matters, the Court’s primary concern is the best interests of the child – which is what its decisions will be based on. Failure to communicate will appear to that Court as if you’re not willing to promote the relationship between the child and the other parent, which is an essential part of parental bonding and social development.

You don’t need to be best friends. But you chose to have a child together, so the Court expects that you behave in a child-focused manner and exchange important information for the sake of your child. If you find it difficult to talk with the other parent, you may want to agree on one medium of communication that will minimise conflict. Many separated parents prefer to email, text, or use a communication platform, as they find that written communication elicits less emotion and keeps conversations more child-focused and appropriate.

If the Court considers that you are genuinely not willing to promote a relationship between the child and the other parent without good reason, there is a risk that the Family Court will say a shared care relationship can’t work and the other parent may become the primary carer. In some cases, they may even be given sole responsibility for major long-term decisions.

Preventing Access to a Child

While many parents believe they may be doing the right thing by withholding the child from contacting the other parent, it’s often one of the worst things a parent could do.

There are some cases where there is a need to protect a child from being physically or emotionally harmed. However, if there is no risk to the child, then the Court expects to see both parents are open and keen to demonstrate that they are willing to co-parent and promote a relationship between the child and the other parent. If you withhold a child from the other parent without a good and justifiable reason, you could find yourself losing primary care of your children for your failure to show a willingness to encourage the children’s relationship with the other parent.

Having said that, there are some circumstances where it is essential for a parent to withhold the child from access by the other parent. These are when serious situations arise where the child is at risk of harm, be it emotional or physical, and in need of protection from the other parent.

Some instances where this is deemed necessary can include:

The other parent is violent towards the child
The other parent is taking drugs in the presence of the child
The other parent is the victim of domestic violence and the child may be exposed to this behaviour
There is a risk of the child being exposed or subjected to sexual abuse
The other parent may potentially expose the child to harm
The other parent has done or said something to make you believe that they will not return the child at the end of their access visit.

If your concern for the child’s well-being is so serious that it causes you to prevent access to the other parent, we strongly recommend attempting to maintain some form of contact with the child and the other parent (perhaps by phone or video link such as Facebook Messenger or Facetime) or arranging supervised visits (if appropriate) until Court Orders are made by the local Family Court. This will show the Court that you are serious about attempting to maintain a relationship between the child and the other parent, while maintaining the safety and well-being of the child.

Remember, withholding access to a child without any justification can have serious ramifications for you in Court proceedings. So, you may wish to seek legal advice as to possible alternate measures and if your actions are reasonable before denying access.

Lying About Drug Use or Alcohol

Drug and alcohol abuse is not uncommon in family law situations or parental separations. What is also common is the frequency of parents who try to hide or deny the use of drugs or alcohol.

Many parents with a history of drug and alcohol consumption understandably believe that their use of such substances will impede upon their chances of gaining parental responsibilities in parenting arrangements.

This can be the case, however, it is important to recognise that the Family Law Courts are not as concerned about drug or alcohol use as much as they are concerned about how use may impact your children and your ability to be a good parent.

Taking steps to minimise substance abuse, such as counselling or rehabilitation, and making an effort to stay away from drugs and alcohol during visits with the child can show the Court that you can maintain self-control and will improve your chances of having further contact with your children.

Remember the Court is more concerned with your future ability to care for your children appropriately, rather than your past.

Splitting up the children

It is becoming more and more common to see blended families today. The Court will take into account the relationships between all types of siblings, including half-siblings and step-siblings – not just biological siblings.

In the instance that parents with blended families separate, it is important to consider the impact on the children if they are split up. People tend to focus on only the biological children of the parents and fail to accommodate for the other children involved.

Seeking to separate the children may suggest to the Court that the parent is not child-focused. The Family Court does not usually like to separate children unless they have no other option.

It may be wise not to ask the Court that children be separated and consider alternative measures instead. However, on occasion, the Court may decide that the best option to accommodate all of the children’s best interests and their well-being is for them to be separated.

We recommend you seek legal advice in this regard, as it applies to your individual circumstances.

Not Being Properly Prepared for Court Specialists and Court Experts

Family report writers are called on to be impartial and provide recommendations based on the best interests of the child. The Court places a high level of trust in family report writers’ observations of the parents and interactions with the children.

Although it is a common part of many family law matters, people tend to underestimate the importance of family reports and the interviews conducted with all parties during the separation process.

Many Judges rely heavily on the recommendations of the family report writer or psychologist, giving great weight to the analysis of these experts having interviewed all relevant parties and the children, before giving their independent opinion.

While decisions aren’t always made solely based on family reports by court experts, they weigh heavily on the decisions made by the Court (such as Court Orders).

You must let your children speak for themselves as children will normally be quite honest, or are bad liars when questioned during family report interviews. It will be obvious to the report writer when a parent has tried to coach the child for the interview. Children do not like to be made to choose one parent over the other and any manipulation by one parent will display unfavourably in the written report.

To prepare for a family report interview, you should practice refraining from saying anything negative about the other parent. This will help you to be more balanced and child-focused during the interview process.

Remember, from the moment you speak to the family report writer or their secretary on the phone to arrange interviews, through to arriving in the reception area, interacting with your children and speaking to the other parent, right up until when you leave the interviews, everything you say and do is being observed.

Allowing Children to Play Parents off Against Each Other

When parents fail to communicate or are competing for the affection of their children, children tend to play one parent off against the other – which then causes parents to lose their ability to co-parent effectively.

Rules and structure are vital to the growth of a child. So, when this is lacking, it tends to encourage children to test the boundaries of both parents, often seeing an opportunity by making one – or both – parents feel guilty.

While children may test the boundaries from time to time, they need their parents to make decisions for them. If you cave in to your child’s demands, it can lead to bad parenting decisions and increasing parental conflict.

A good way to avoid this happening is to ensure communication between parents relating to the separation is not in the presence of the child.

Involving Children in Adult Conflict and Legal Proceedings

As far as Judges are concerned, family law proceedings are for the involvement of the parents only and children should not be involved in any aspect of the case. A courtroom is no place for a child and anyone under 18 years is not permitted in the family law courtrooms without the Judge’s permission.

There are many reasons why your child should not be involved in the court proceedings and this includes showing your child court documents. It is considered extremely inappropriate because you are involving your child in adult issues that children should not be privy to. Your child may not be aware of various matters, such as drug use, an affair or instances of poor parenting.

Children often see their parents as heroes, and information that may be exchanged through family law proceedings is not something your child needs to know. You may hinder a child’s view of the other parent, or even their view of you in some cases and undermine the relationship between the child and parent.

If deemed necessary, the appropriate way to include a child’s wishes is by arranging a family report.

Not putting the children’s best interests ahead of your own decision making

Understandably, people can often become completely consumed by their separation. But when parents are completely entrenched in parenting separation matters, it can often lead to them focusing on their own interests and the negative things about the other parent, over and above what is best for their children.

A common example is living arrangements. For example, wanting to live somewhere that is close to work, wanting your children to live with you to minimise child support, or not agreeing to the other parent’s parenting plan because you don’t want them to dictate when you see the children.

It’s common for parents to put forward their own agendas to be portrayed as if it is about the interests of the children. The Family Court sees this time and time again and can easily identify when parents aren’t being child-focused.

Before you make a decision that concerns your child, it is best to ask yourself if what you are about to do is truly in the best interests of your child. If the answer is no, then it should be avoided as the Court will likely see it as you putting your needs ahead of your child.

The ultimate decision of the Court will always reflect the best interests of the children.

While Judges will investigate the many factors involved in determining their decision, they are human, so they will still be influenced by their own opinions. This means it is incredibly important to act in a way that will not leave them questioning your judgement.

If you aren’t sure you’re doing the right thing, it’s important to seek legal advice.

Going through a divorce or legal separation is already an overwhelmingly emotional experience. You also need to deal with negotiations regarding property settlement.

However, one of the most difficult parts of this process is trying to settle on the ideal parenting arrangements for your children.

It’s easy to get confused or feel discouraged due to unreliable myths you often hear people say about parenting arrangements and parenting orders.

To help provide some clarity, here are the 10 common myths around parenting agreements during a separation or divorce.

The mother always has more power

The Court will always prioritise what’s best for your children’s interests when it comes to deciding on who they should live with. As such, it’s wrong to assume the Court will place a bias on gender or that mothers have the upper hand in this matter.

Remember – there are no laws that state children should live primarily with the mother rather than the father after a separation.

Parenting plans are binding

Parenting plans refer to the agreements signed off by you and your former partner, but which are not submitted to the Court for approval and formalised into Consent Orders. These are not legally binding and cannot be enforced by the Court if they are breached.

Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. Therefore, serious consequences and penalties such as payment of fines, compensation, community service, or imprisonment can be ordered against either parent due to a breach.

Getting a Court Order is the solution if both parents can’t agree

You can’t go straight to Court and demand for the Judge to make an immediate Order just because you and your former partner or spouse can’t reach a compromise for your parenting matters.

There is a significant amount of time and work involved in preparing court documents, and it’s also common to experience delays for several months before your case may even be listed for the first hearing.

Unless it’s urgent or there is a real risk of harm or abuse to the children, parents must focus on a more serious attempt of mediation – making a genuine effort to reach an agreement before court proceedings can be filed.

There is no need to consult with the other parent about decisions affecting the children

If there are Parenting Orders for joint parental responsibility, you are required to consult and negotiate with your former partner or spouse when making major long-term decisions for your children. You also need to disclose important information like your children’s medical appointments, school information and travel plans.

You could be in breach if you do not comply with Parenting Orders that have been made by the Court. The other parent may file a contravention application against you, which could then have serious consequences resulting in penalties being imposed by the Court. The other parent may also apply to the Court, and be successful, in varying the existing Parenting Orders, on terms which you may not agree with.

Even if there are no Parenting Orders, the Court may still decide that you should have consulted the other parent about major long-term decisions such as schooling and education, religion, serious medical appointments or relocating with the children.

For example, if you unilaterally change the children’s school or relocate with the children so that it impedes on their relationship with the other parent, the Court may make an Order that the children be returned to their previous school or that the children be returned to live within close proximity to where they were living before.

Your children can make their own decisions about where they want to live once they turn 12 years old

Your children can express where they wish to live, but this is just one factor amongst many things the Court will take into consideration when determining the appropriate parenting arrangements for them.

The law sets no exact age at which children can decide for themselves where they want to live or stay. As such, the Court takes into account their age, maturity and reasons and understanding of the decision when considering their preferences.

Divorce applications deal with parenting arrangements

Your divorce application only deals with obtaining your divorce so that you are no longer legally married. However, it doesn’t automatically put parenting arrangements in place.

Ensuring a Parenting Order is made, either by consent or by a Judge, is the key to formalising your parenting arrangements to make them binding and enforceable.

There is nothing you can do when the other parent is bad-mouthing you

This is not true. You can actually seek orders that prevent your former partner or spouse from denigrating or insulting you or your family members or other significant persons to your children.

It’s not necessary to follow Court Orders

Serious ramifications can result from breaching Court Orders. Since the Court holds the power to issue penalties ranging from fines up to imprisonment, it is not wise for you to breach Court Orders – especially without seeking legal advice first.

A Parenting Order will override any Domestic (Family ) Violence Orders

This is not always the case. Under Australian domestic violence laws, the local Magistrates Court which deals with family violence matters must consider any existing parenting orders. Nevertheless, it does not mean that the domestic violence Courts will limit their powers so as to make Protection Orders (i.e. Domestic Violence or Family Violence Orders) that are consistent with the existing parenting ones, particularly when the safety of your children is at stake.

The local domestic violence Courts may revive, vary, discharge or suspend parenting orders.

The Family Law Courts must take into account the child’s best interests being the paramount consideration, and to the extent possible ensure the Order is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence. The Order may include safeguards the Court considers necessary for the safety of the children or persons affected by the Order.

When a Protection Order contradicts a Parenting Order, you may need to apply to the Family Law Courts to obtain a declaration that that the Parenting Order is inconsistent with an existing Family Violence Order and the Family Violence Order is invalid.

Not spending time with children means there’s no need to pay for child support

If you are the biological parent of your children, you bear the duty to maintain and provide financial support to them, regardless of whether you’re spending time with them or not. You need to offer financial assistance, even if the other parent prevents you from spending time with your children.

The amount you’ll pay is assessed and determined by the Child Support Agency based on factors such as how much overnight time each parent has the children in their care for, the earnings of each parent and the age and needs of each child.

If in doubt, always seek legal advice about parenting matters.

Have you been searching for answers regarding the “divorce property settlement time limit” or the “de facto property settlement time limit” or the “spousal maintenance time limit”?

It’s quite a common question during a separation or a divorce.

One of the most important things you must manage when undergoing a divorce or legal separation is the property settlement process. To make sure you avoid any further difficulties, it’s important to know and abide by the time limit.

You don’t want to miss having claims on your assets just because you missed the deadline required.

So, to help, here are some key points you should remember about time limits for property settlement and spousal maintenance.

What is the property settlement and spousal maintenance time limit after a divorce or separation?

If you are married, the time limit is one year after your divorce becomes final. On the other hand, if you are in a de facto relationship, the time limit is two years from the date of separation.

The property settlement process can begin any time after separation. Commencing property settlement negotiations soon after you and your partner or spouse have separated can help you finalise things without having to go to Court. It can enable each of you to work out if you can afford to adequately support yourself, now living separately, or whether you need any financial support from your former partner or spouse (spousal maintenance). It also allows property settlement proceedings to begin before the time limit ends, should you not be able to reach an agreement and opt to file for a Court application.

Handling your property settlement matters as early as possible will lessen the risk of the negotiations taking longer than you expect.

Keep in mind that when the time limit passes, you can lose your rights to seek a property settlement or payment of spousal maintenance – so it’s best to act sooner than later.

What if the time limit has already passed?

Once the time limit passes and you have not yet filed proceedings for property settlement and/or spousal maintenance, then you need to ask permission from the Court.

This pertains to the process of obtaining “the Leave of the Court” to proceed with Property Settlement or Spousal Maintenance out of the allowed time frames. Leave is usually only granted in exceptional circumstances and there are strict requirements that must be met. It’s best, then, to consult a lawyer to ensure you follow the right guidelines.

What are the grounds for obtaining leave to proceed for property settlement after the time period?

For the Court to grant you with Leave to proceed out of time for a Property Settlement or claim for Spousal Maintenance, you need to satisfy the following:

Hardship would be caused to you or a child of the relationship if leave is not granted.
You have a real probability of being successful in your property settlement claim.
Concerning claims for maintenance, at the end of the period before the time limit expired, your circumstances would have made you unable to support yourself without an income-tested pension, allowance or benefit.

When making decisions regarding granting leave to proceed out of time, the Judge will also examine these factors:

Length of the delay outside the limitation period
Reasons for the delay
Strength of the merits of your case
History of the proceedings
Conduct of the parties
Any likely prejudice and consequences to be caused to the other party or third parties if leave were to now be granted
Degree of hardship likely to be suffered if leave is not granted
Weighing up the court proceedings being allowed to proceed against the capacity of the parties to proceed with their post-separation lives free of prospective litigation

The Judge will, then, greatly consider whether granting leave will do justice or not between you and the other party. As such, it’s important to note that the onus of proof or the obligation to prove the case lies on you – the applicant party seeking to proceed out of time.

To learn more, here are examples of related legal cases.

Case 1

In Hertwig & Hertwig [2018], leave was sought by the husband to commence property settlement proceedings around four months after the limitation period. The husband had attempted to begin proceedings about two days before the limitation date expired, but encountered difficulties when filing the documents.

The husband cited it was because the wife had diverted a property (a significant asset) to a Trust entity controlled by her parents, whereas before separation, the property had been financially supporting both of them and their children.

What was the judge’s decision?

The Judge considered that if leave was not granted, the husband would lose the opportunity to seek orders in relation to the property.

Recognising the various contributions the husband made during their relationship, the Judge came to the conclusion that the wife had taken the benefit of a significant asset which financially supported both parties and their children before separation – especially because this property was the only asset in the couples’ property pool.

In this case, the parties were still to resolve parenting matters. However, the Judge granted leave for the husband to institute proceedings for a claim for property settlement.

Case 2

In Edmunds & Edmunds [2017], neither party commenced proceedings within the limitation period. The wife, then, sought leave to proceed with a property settlement application 6 years and 9 months after the time limit had expired.

The parties were married for 17 years and had 3 children, with the youngest being 17 at the time the application was made by the wife. When the parties commenced living together, the husband had an interest in 2 properties with his first wife and the wife had little assets of value. During the relationship, the wife’s parents gifted the parties $25,000 which was used towards the purchase of a property that was renovated and later sold. When the parties separated, they owned 2 properties in joint names and had superannuation. The total net value of the asset pool was around $552,000.

By the time the wife’s application for leave was before the Court, the husband’s asset position had become significantly greater than it was at the time of separation. The wife contended there was an informal agreement as to property settlement, but the husband denied this and said there was nothing formally documented.

What is the judge’s decision?

In this case, the Judge considered the following factors:

the financial and non-financial contributions of the parties
all of the evidence given by the parties
the likely percentage division if a Court was to determine a property settlement claim, in comparison to the value of the assets already retained in each party’s name
the likely costs to be incurred by each party if leave was granted and property settlement proceedings pursued
the significant prejudice to the husband in responding to the wife’s claim for property settlement, including the passage of time on the availability of documents and witnesses and his recollection of relevant matters from 25 years prior
the length of the delay, as the limitation period had expired 6 times over
the wife’s failure to take any action despite being aware of the time limit and her inadequate explanation for the delay
the wife’s actions after separation not raising a reasonable expectation she would later make a claim for property settlement

Taking all of these into account, the Judge refused to grant leave for the wife to proceed with a claim for property settlement on the basis that hardship had not been proved.

Consequently, the parties were left to reach an agreement or seek orders through State-based laws for the properties to be sold – meaning the proceeds would be divided equally as the properties were held in joint names.

If in doubt, always seek legal advice about your property settlement and spousal maintenance rights and entitlements.

Contact a lawyer from our panel of trusted partners to get the advice you need.

During a separation or a divorce, you’ve probably heard the term “Consent Orders”.

But what does a Consent Order really mean? Why are they important?

If you have children with your ex-spouse or you share assets, then it’s important to become well-informed about this topic. So, to help, here is a quick guide to Consent Orders.

What is a consent order?

A Consent Order refers to the legally enforceable agreement made by a Judge or approved by the Family Court. It is negotiated between two or more parties to settle disputes and involves actions that need to be upheld.

For Family Law, where the case involves separation or divorce, a Consent Order can relate to either parenting of a child or property settlement i.e. the division of assets and allocation of debts.

A Parenting Order is a set of orders made by a Court about parenting arrangements for a child, while Property Orders are a set of orders from a Court regarding the division of assets, debts and payment of money to a spouse or partner.

How to apply for a consent order

A Court can issue you with a Parenting Order or a Property Order either during Court proceedings that have already been commenced where there were issues in dispute (contested matters), or prior to either party having started Court proceedings, where there is an agreement between the parties involved (a Consent Order). .

If you opt to settle your parenting arrangements and property matters through an agreement with your partner or spouse, you can formalise it into writing and make it legally binding by applying to the Family Court of Australia for Consent Orders. You do not need to appear in Court before a Judge when filing an Application for Consent Orders, where Court proceedings have not already been commenced.

If the Court is satisfied that your proposed orders are “just and equitable” for property and financial matters and/or are in the ‘best interests of the children’ for parenting arrangements, the Court will approve them and provide you with a sealed copy of the Orders.

Parenting Orders and Property Orders made by consent have the same weight and enforceability as if they were Orders that had been decided by a Judge after a contested hearing.

What is a minute of consent for?

If you’ve made an Application for Consent Orders, or have reached an agreement after Court proceedings have been commenced, as per the above, you are requesting the Court to make Consent Orders. You file a Minute of Consent Order which is a document setting out the Orders you are asking the Judge to approve that has been signed by both parties.

How much will it cost to file consent orders?

The current Court filing fee for Consent Orders is $165.00 (although this is subject to change – check your local Family Court for the latest fees).

Nevertheless, you may be exempted from paying if you are going through financial hardship or if you are the primary cardholder of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Care or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to commonwealth health concessions.

How long do consent orders take to process?

If you have submitted your documents correctly and the Family Court is satisfied in making the Consent Orders, you will usually receive the sealed orders within 4 to 6 weeks from the filing date.

If in doubt, contact the Court directly for an update.

Are consent orders legally binding?

Yes. It is important to remember that Consent Orders are legally binding.

While Consent Orders are generally enforceable by the Family Court, there are still limited circumstances when such Property Orders concerning property and financial matters can be overturned due to:

fraud
duress
suppression of evidence
failure to disclose relevant information
giving of false evidence
Proceeds of Crime Order subsequently made
circumstances have arisen since the Court Order was made where it is impracticable for part of the order to be carried out
circumstances of an exceptional nature have arisen since the Court Order was made relating to the care, welfare and development of a child of the relationship where a party caring for the child suffer hardship if the Order is not varied
due to a person’s default under the Orders, it is just and equitable to vary the order

For parenting matters, on the other hand, it’s expected that Parenting Orders made will be in force until the children turn 18 years of age – unless, of course, a new Parenting Order is put in place.

So, if you and the other party agree to change these arrangements, you may enter into a parenting plan or apply for Consent Orders that will modify the existing ones.

Why is it necessary to get consent orders over a parenting plan?

A parenting plan is a written agreement signed by the parties that emphasises the parenting arrangements you have with your former partner.

This is not legally enforceable by the Court, which is why it does not bear the same consequences and legal rights as a Parenting Order. However, the Court will have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the children.

If you wish to make your parenting agreements binding and enforceable, you should formalise them into Consent Orders.

What happens if consent orders are breached?

Provided that it has not been altered by a subsequent parenting plan, the Court can penalise you or your former partner or spouse if there is a failure to comply with a Parenting Order or enforce the terms of a Property Order that hasn’t been complied with.

If your former partner or spouse has not complied with a Property Order, you may need to commence enforcement proceedings so that the terms of the Order are carried out.

If a Parenting Order is breached, you may wish to file a contravention application (in other words, notifying the Court of a breach).

The Court will, then, consider all the facts to determine if:

the contravention was established or not
the contravention was established but there was a reasonable excuse
if there was a less serious contravention without reasonable excuse
if there was a more serious contravention without reasonable excuse

If the Court determines a party has failed to comply with a Parenting Order without a reasonable excuse, depending on the circumstances and the type and seriousness of the contravention, the Family Law Courts have the power to:

vary the Parenting Order
order a post-separation parenting program be attended
compensate for lost time with the children as a result of the contravention
require a bond be entered into
order the other party’s legal costs to be paid (either partially or in full)
order compensation for reasonable expenses lost as a result of the contravention
require community service to be participated in
order a fine to be paid
order a sentence of imprisonment
adjourn the case to allow the other party to apply for a further Parenting Order

You may not actually want the other party punished for breaching the Parenting Orders. Instead you may simply want to ensure the resumption of the existing Parenting Orders, or alternately you want to vary the Orders given they have not been complied with and there may be circumstances that have changed such that they are no longer workable or best for the children.

In these circumstances, you may be able to file and Application in a Case rather than a Contravention Application. You should seek legal advice as to your individual situation so that the Application you file is the most likely to achieve the outcome you are seeking.

It is important to obtain independent legal advice to ensure you are aware of your rights and responsibilities when it comes to Court Orders.

Attaining professional help can also allow you to understand the meaning, effect and consequences of the Court Orders you are seeking. Our referral lawyers can advise you if your agreement is just and equitable and/or in the children’s best interests and likely to be approved by the Family Law Courts.