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parenting order

Must I obtain a court order for care arrangements for my children?

The simple answer is “no”. There is no requirement that separated parents obtain a court order addressing care arrangements for your children.  You and your former partner may choose to seek that consent orders be issued by the Family Court. However, if relations with your former partner are amicable, then court orders would not seem necessary.

Court orders provide certainty for parties as to when children are in each of their care. On the downside though, orders are not generally as flexible as a parenting plan which may be more easily varied. After orders are issued, if you wish to vary their terms, you may need to seek that the Court makes further orders varying the terms. That can be a time consuming and costly exercise, often with no certainty as to the variation that the Court may be willing to make.

A Parenting Plan on the other hand has the advantage of flexibility. A Plan is any written, signed and dated agreement made without any threat, duress or coercion between parents of a child. It may deal with various matters including:

  • The person/s (normally a parent) with whom a child is to live;
  • The time that a child will spend with another person/s (normally the other parent);
  • How parental responsibility for a child is to be allocated;
  • The frequency and manner of communication that a child is to have with another person/s (often the parent who does not at the time have care of the child);
  • The manner in which disputes concerning the operation of the plan are to be resolved;
  • Any aspect of the care, welfare or development of the child.

A parenting plan is not enforceable but can assist parties to clarify their intentions for the care arrangements for their children.

A parenting plan may exist alongside a parenting order. The order may address significant issues such as the parent with whom the child lives and the time that the child spends with the other parent. The parenting plan may deal with other issues such as how disputes are to be resolved although that issue may also be addressed in a parenting order.

parenting order

Do you need to get a court parenting order for care arrangements for the children?

You should be aware though that parenting orders will be subject to later parenting plans (unless the plans were made under threat, duress or co-ercion).

Our child custody lawyers at LGM Family Law understand that working out parenting arrangements for your children after a separation is often very stressful for a parent. We are able to assist you in determining whether a parenting order or Court order will be in the best interests of your child and preparing terms that will suit your family’s circumstances.  Contact us today for a free initial telephone consultation and have the peace of mind that you deserve.

 

 

 

 

Time arrangements for children with separated parents | Custody of Children

Keeping up with the times and the lingo in relation to “custody of children”

When it comes to referring to who has the care of children in family law proceedings, the reference to who has “custody of children” is considered old fashioned and no longer appropriate.

The underlying premise is the right of the child to have a meaningful relationship with both parents.

The terms “equal time” and “substantial and significant time” are now used when it comes to considering the time that children should spend with each of their parents under Court orders.

But what do these terms mean?  In this article, we explain what the terms “equal time” and “substantial time” means to the Court and for you as a parent.

Custody of Children

Custody of Children

 

Parenting Orders: Parental Responsibility

Before a Court will make an order regarding the time a child spends with each parent, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Parental responsibility encompasses all duties, powers, responsibilities and authority conferred by law upon parents.  This means responsibility for the day to day issues and for the big issues such as their health, education, religion etc.

If equal shared parental responsibility applies, when making decisions about the big issues, also known as “major long term issues” for the children, parents must:-

  1. Consult each other in relation to a decision being made about that issue; and
  2. Make a genuine effort to come to a joint decision about that issue.

The Court can refuse to apply the presumption in certain circumstances (which is referred to as “rebutting the presumption”) where there is evidence of abuse of a child or of another child who was a member of that parent’s family or of any family violence.

If the presumption of equal shared parental responsibility for the child is not rebutted, then the Court must consider whether “equal time” would be in the best interests of the child, whether it is “reasonably practicable” and if so, consider making an order to provide for the child/ren to spend equal time with each of the parents.

Then, if the Court does not make an order for “equal time” the Court must consider making an Order for “significant and substantial” time.

Reasonably practicable

To determine whether time is reasonably practicable, the Court considers the following factors:-

  • how far apart the parents live from each other; and
  • the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
  • the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
  • the impact that an arrangement of that kind would have on the child; and
  • such other matters as the court considers relevant

Making an Order

The Court will rely upon evidence from each party to the proceedings, whether that be the parents, an independent children’s lawyer, or a third party joint to the proceedings, to:-

  1. determine whether the presumption of equal shared parental responsibility is rebutted in cases where this is raised;
  2. Determine what is in the best interests of the child;
  3. Determine what is reasonably practicable in the circumstances; and
  4. Determine what Order should be made regarding the care of the child or children.

Equal time v Substantial and Significant: What’s the difference?

Equal time is just that, a 50/50 care arrangement. Whether that’s with weekly or fortnightly changeovers, or a varied changeover routine that works best for the child, the child spends equal time with each parent.

Substantial and significant time, on the other hand, is defined in the legislation. The legislation says that time will be considered substantial and significant, if the time the child spends with the other parent includes both:

  1. days that fall on weekends and holidays; and
  2. days that do not fall on weekends or holidays; and
  3. the time the child spends with the other parent allows the parent to be involved in:
    1. the child’s daily routine; and
    2. occasions or events that are of significance to the child; and
  1. the time the child spends with the other parent allows the child to be involved in occasions and events that are of special significance to the parent.

What does “being involved in the daily routine” mean?

There is no definition for “daily routine” that applies for all children and all families.

Being a part of your children’s daily routine does not necessarily mean seeing your children every day.

In a 2016 case, the Full Court held that the children spending time with their Father on alternate weekends, alternate Fridays (from after school to 7 pm), special days and school holidays comprised substantial and significant time.

The Full Court said that this was substantial and significant because the practical effect of the orders was that the children would spend time with the Father during school term every week, for a full weekend every second weekend and at school events that parents normally attend. The children would also have time for telephone and FaceTime contact with the Father and also for block periods in school holidays and on special occasions.

Obviously, each child’s routine and life is different as is each family and the practical effect of arrangements will vary for each case.

What should I do next to ensure appropriate care arrangements for children?

If you are considering separation, or if you have already separated, and you have a child or children with your former partner, call our Family Lawyers  on (07) 3506 3651. Our team of experienced lawyers located at the Grange and Brisbane CBD can assist you in your matter regarding custody of children.

To receive a FREE 15 minute consultation with one of our solicitors, contact us today and take the next steps to ensure the care, welfare, and development of your child is protected.

Child Custody Lawyers Brisbane

Relocating a child | Child Custody Lawyers Brisbane

On 4 April 2017, Queensland footballer and Melbourne Storm superstar Cooper Cronk announced that in 2018, he would be relocating from Melbourne to Sydney with his fiancé. With the issue of moving inter-state currently in the media, we wanted to look at relocation in Family Law on our blog this week, and in particular, how it works when parents are separated and one parent wants to move and take the children with them. Read on to find out from our Child Custody Lawyers Brisbane.

Child Custody Lawyers Brisbane

Child Custody Lawyers Brisbane

 

Sometimes, a parent may wish to relocate with the children interstate or to a place which is not within easy reach for the other parent to spend time with the children. If this is your situation and you and your former partner cannot reach agreement or resolve matters at a mediation, you will need to file an Application in court.

It is important to remember that as an adult, you have the right to pack up and go wherever and whenever you choose. However, as a parent, your child’s best interests must be considered. It may be that your child’s best interests lie in making the move that you wish to make. However, if the other parent objects, you may find that resolving this issue sees you in Court unless parents can reach agreement.

In most cases, you must attempt a dispute resolution meeting with the other parent before seeking the assistance of the court. However, this may not apply if the other parent has already relocated with the children without your consent. You may then apply to the Court seeking a recovery order and other parenting orders. You may wish first to try to reach agreement with the other parent. You  should be mindful though of not leaving it too long to go before the court if agreement cannot be reached. You will want to avoid a situation where your children become established in their new environment, possible involving a new school or kindergarten.

If you are the parent wanting to move, where agreement cannot be reached with the other parent through negotiation or a dispute resolution meeting, you will need to apply to court seeking a parenting order which provides for the children to relocate with you.

Once you get to Court

All parenting cases are determined on the facts of the case. There is no pre-determined outcome for a matter regarding relocation nor a formula that can be applied.  The Court will consider all the usual factors that are relevant in a parenting case.

The Court will need to determine whether it is in the best interests of the child to spend equal time with each parent and whether equal time is reasonably practicable. If it is not, the Court must consider whether the child spending substantial and significant time with each of the parents is in the best interests of the child and whether it is reasonably practicable.

The paramount consideration for the Court will always be what is in the best interests of the child. When determining what is in the child’s best interests, the court will consider the benefit of a child having a meaningful relationship with both parents, whether there is any risk of or actual family violence or neglect and numerous other factors.

As the parent wanting to relocate, you do not need to provide a compelling reason to the court for wanting to move. That being said, it can help when attempting to persuade the court that it will be in the child’s best interests to allow the child to relocate to demonstrate your reasons for wanting to relocate. Those reasons may for example effect your capacity to parent and this will be of relevance in determining what is in the best interests of the child.

Case Study

Sally and Mike have been married for 14 years. They have a 5 year old child, B. The family moves to a rural mining town for Mike’s new job. Sally really struggles with living in a rural town and decides to return to Brisbane with B. Sally and Mike separate shortly after. Mike applies to the court for a recovery order – to have Sally return to the rural town with B. This order was made, and upon returning to the town, Sally could not find a full-time job or a house for her and B to live in.

Upon appealing the recovery order, the court finds that although it was in the best interests of B to be able to spend equal time with both parents, it was not reasonably practicable for that equal time to occur in these circumstances. In circumstances where the relocation meant that Sally was living in a caravan and relying on Centrelink for income, the court ought to have considered alternative orders.

Get in Contact with our Child Custody Lawyers Brisbane

If you or someone you know is going through a similar situation, it’s important to seek legal advice early on. Our Child Custody Lawyers Brisbane, offer professional and experienced advice that can help you and your family to move forward in life. For more information on Child Custody, click here. Or, give our Child Custody Lawyers Brisbane a call today for a free 15 minute consultation.