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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.

Parenting plan

Tips for arranging Mother’s Day with your former partner

Mother’s day is just around the corner. For children, it’s a good day to stop and appreciate the very special role Mother’s play in your life. For Mother’s, it should be a day filled with relaxing and spending quality time with your children. However, if you’re separated, it may be a difficult day to negotiate with your former partner.

To avoid any stress or confusion on the day, it’s a good idea to put in place a parenting plan with your former partner ahead of time. Here’s a few tips on how to ensure this Mother’s Day is an enjoyable one.

Parenting plan

Making a parenting plan for Mother’s Day

Whether this is your first Mother’s Day post-separation or you have been separated for a while, it can be a challenging day to face on your own. Naturally, as a mother, you want to spend this important day with your children.  It’s important then to ensure that you and your former partner can agree on a parenting plan for the day that will work well for you both as well as for the children.

There are a number of parenting plan methods you can put in place for Mother’s Day, depending on what suits both parties. Some more common ones include:

  1. A time-sharing arrangement over Mother’s Day weekend: This allows both parties to enjoy part of the day or weekend with the children. For instance, one parent (more likely the Father) would have the children from 9:00am on the Saturday until 9:00am on Mother’s Day. Then 9:00am on Mother’s Day until 9:00am the next day would be spent with the other parent (more likely the Mother).
  2. Mother’s Day arrangement: This parenting plan allows the children and you to enjoy your special day with the children. The children spend Mother’s Day each year with you. You might agree to make it a weekend or just the day that the children spend with you on Mother’s Day.

A similar parenting arrangement can then apply for the children to spend time with their Father on Father’s Day.  No matter what parenting plan you and your former partner decide upon, it’s a good idea to choose an arrangement that is less disruptive for the children and, if there is conflict between you and your former partner, one which involves as little interaction for you with your former partner as possible.

It is not a requirement for parenting arrangements that you have any legal agreement or court orders in place.  It often really helps however, if you and your former partner at least have a parenting plan that sets out what you have agreed for parenting arrangements. This will help to ensure that you have both considered all factors.

If agreement cannot be reached or where there is conflict or domestic violence involved, a court order can give you certainty and limit or exclude occasions where you and your former partner would otherwise need to interact in relation to arrangements for the children.

A court order may be obtained by agreement with your former partner and in that case, you do not need to attend at Court.

If agreement cannot be reached for consent orders to be issued, you may need then to consider making an application to court seeking parenting orders.  Depending upon your circumstances, you will likely need to attend or at least attempt a dispute resolution meeting with your former partner before any application is made to court.

You are welcome to contact us at LGM Family Law for advice specific to your circumstances. We can assist you in reaching a parenting plan or where necessary, obtaining court orders for arrangements for your children.

For more information on child custody, see here.

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.

 

Easter season

Parenting arrangements for Easter

Make this Easter an enjoyable one for the whole family with these simple parenting arrangements. 

Easter is an exciting time of year, particularly for the children. It’s a time for laughter, family and hopefully a visit from the Easter Bunny! As a parent, it’s natural to want to spend as much of this holiday season with your children. However, where you are separated from your former partner, getting to spend the entire holiday period with your children may not be an option. It’s important for your children that they can spend time with each of you.

You will want to plan ahead how the children will spend their time over this period.  Try to come to an arrangement that will involve the least disruption for your children as possible.

There are two common arrangements that you may like to consider. These are: a time-sharing arrangement or; an alternate year arrangement.

  1. A time-sharing arrangement each year

A time-sharing arrangement can come in a number of forms, depending on what suits both parties. One option might be for the children to spend from 9:00am on the Thursday until 9:00am on Easter Saturday with one parent and from 9:00am on Easter Saturday until Easter Monday 5:00pm with another. These times can then be reversed for each parent on alternate years.

  1. An alternate year arrangement

This would involve the Easter period being spent with one parent one year and alternating to the other parent the following year. One parent may choose to take all years ending in an odd number, whilst the other parent agrees to take years ending in even numbers.

It is wonderful if you can make arrangements directly with your former partner in an amicable way. If that is difficult in your situation however, we are able to help you with negotiating an agreement with your former partner.

For more ideas on parenting arrangements, see our related post. Or, if you need further advice or are struggling to reach an agreement with your former partner, contact our friendly team today.

 

Recently separated? How to ensure a smooth and enjoyable Christmas for you and your family.

Christmas is a time for celebration, so make sure your separation doesn’t affect your Christmas cheer this year.

Dealing with separation over Christmas

Everyone enjoys their traditions at Christmas – whether it is Christmas Ham and salad, BBQ on the deck or lovely roast pork & turkey cooked in the oven with the aircon on full blast!

If you are recently separated, this year there will be new traditions. Whilst separation can be hard on the children, for some, there will at least be the thrill of having Santa visit twice!

However your children may spend time over the Christmas period with you and your former partner, it is important that, as much as possible, arrangements are made in advance to help make it a great time for them and reduce any prospect of stress for you. You deserve to be happy too!

So, what can you do to help ensure a smooth Christmas that your children can enjoy?

The key is planning, preparation and communication. Here is some helpful tips to get you through the holiday season:

– Communicate with your former partner what the agreement is for Christmas (the time for changeover, who is dropping or who is collecting your children etc.).

– Communicate with your children, ask them what they enjoy the most about Christmas and try to make it happen (remembering of course, that you are the parent! If it’s just not possible for a request to happen – communicate that with them).

– Communicate the arrangement with your family and visitors so they aren’t surprised when the kids pack up to leave for time with the other parent.

– Plan your day so that you have something to do after the children have left to spend time with your former partner. Surround yourself with friends or family or give yourself a special treat.

– Prepare as much as you can the day before so precious moments with your children aren’t wasted running around the house cleaning and cooking to be ready for Christmas celebrations.

Just remember – Christmas should be a happy time for you and your children. Try not to let your children pick up on any stress you may feel. A stressed parent means an anxious child and the only thing your kids should be anxious about, is whether or not Santa will be coming!

A reason for caution in Family Reports and how your children will be involved.

Things to be aware of in family reports and how your children will be involved.

Children

Family reports and how your children will be involved.

If you are before the Court in a parenting matter, you may expect that the Court will make interim orders requiring the preparation of a family report. The report is prepared by a family report writer after he or she will have spoken with you and your former partner and quite likely your children also. Dependent upon the age of your children, the time that the report writer spends with your children may be more discussion or play based.

The report that the report writer prepares is filed in the Court and forms part of the evidence before the Court. The report will likely include some account of the interview held with each of you and your former partner and the children. Where children have expressed a view about how much time they wish to spend with each parent, you may expect that this will be included in the report. At the same time, the report writer is likely to include in the report some observations concerning the level of maturity of the children and the consequent weight to be given to their views. The more mature the child appears to be, the greater the weight you may expect will be given to their views.

The amount of time that the report writer spends interviewing a family varies but it is not unusual for the interviews with each of you and your former partner and children to extend collectively over approximately 4-6 hours for a family of four and sometimes longer. However, whether the collective interview period is some 4 hours or 8 hours, the opportunity that the report writer has to gain some insight into the dynamics of a family can sometimes be quite limited.

Report writers are typically very experienced and adept at concentrating the interviews on the areas in issue. Nonetheless, the views that they form are predicated on the information available to them. That information includes the evidence as disclosed by the affidavit material filed by both you, your former partner and any medical experts as well as information gleaned during the interview process.

Even if certain facts concerning your family are evident to you, unless those facts are borne out by independent evidence filed in your case, you risk the report writer considering that what you believe are facts are a matter of your opinion only.

A family report is one tool but an important tool available to the Court to assist in its determination regards what Orders should be made concerning your children. The Judge is not obliged to accept recommendations made by the Family Report Writer but those recommendations may be persuasive. If you are not satisfied with any recommendations made by a Report Writer, you may take issue with them before the Court but before doing so, you need to be sure that there are justifiable grounds for doing so.

For some people, it is not possible to reach agreement with their former partners concerning their children and a Court action becomes necessary. It is important to understand the role of the family report. It is also import to ensure that any allegations that you may have, whether concerning mental health or drug issues affecting your former partner or going to the competence or otherwise of your former partner to provide appropriate care for your children, are properly evidenced, including appropriate independent third party evidence.

If you would like to learn more about arrangements for children, read here. Or, you can contact our experienced staff today to find out how we can help you in your family law matter.