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Parental Responsibility Family Law Act

Parental responsibility Family Law Act

“Parental Responsibility” has a particular meaning in family law. When you are needing to resolve child custody issues, it is important that you understand what the term “parental responsibility” means in the context of a family law matter involving parenting issues.

“Parental responsibility” Family Law Act has been defined in the Family Law Act (1975) (“FLA”) since 1996 when the Family Law Reform Act 1995 (Cth) took effect and removed from the legislation the concept of “guardianship”. The term “parental responsibility” as referred to in the FLA purposely aims to eliminate the notion of parental rights or entitlements over children and place emphasis upon the rights of children to have a meaningful relationship with each of their parents.

Section 61B of the FLA contains the following definition for parental responsibility:

“parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

Contact LGM Family Law for complimentary advice from one of experienced child custody family lawyers Brisbane or child custody family lawyers North Brisbane. We specialise in family law and can assist you to resolve any family law issues, including your parenting issues, whether regards parental responsibility Family Law Act or otherwise. And read on for further information right now about what “parental responsibility” in family law involves.

What does parental responsibility mean in practical terms?

When parents separate they may sometimes disagree in relation to important decisions involving their child. Parental responsibility however is not affected by a separation and each parent retains parental responsibility for their child. This means that parents are required to continue to consult with each other following separation and attempt to make decisions jointly about significant issues involving their child.

It is important to note that shared parental responsibility does not require that parents consult with each other and agree on every decision involving their child. The responsibility of making day-to-day decisions such as what your child eats for breakfast or what time they go to bed lies with the parent caring for the child on that particular day. Conversely, major long-term decisions about the care, welfare and development of the child must be made jointly. Such long-term issues may include but are not limited to:

  • Medical treatment
  • Education
  • Religious upbringing
  • The child’s name
  • Passports; and
  • Marriage of children under 18.

Presumption of Equal Shared Parental Responsibility

The FLA contains a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for them. The Court must apply the presumption of equal shared parental responsibility when making a parenting order.

However, this presumption does not apply and can be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or family violence, or by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Disagreement between parents

In most cases involving children’s issues, parents will agree that there should be shared parental responsibility for their child. This means that they will be required to consult with each other and make a bona fide effort to reach agreement in relation to major long term issues relating to the child. In matters where parents are unable to agree in relation to a major long-term issue such as significant medical decisions or which high school their child should attend, a parent may apply to the Court seeking an order that that parent has sole parental responsibility in relation to that specific issue. Before making such an application, the parent will generally have and to at least attempt a family dispute resolution with the other parent and a family dispute resolution practitioner.

Where a court must determine whether or not one parent should have sole parental responsibility for a child, whether for a particular issue or generally, the Court’s paramount consideration, as in all parenting cases, is what is in the best interests of the child.

Contact LGM Family Law for a complimentary call with one of our experienced child custody family lawyers Brisbane and child custody family lawyers North Brisbane whether for advice about parental responsibility Family Law Act or any other family law matter.We have the experience to assist you across the range of family law issues, including resolving parenting arrangements and obtaining parenting orders. We always endeavour for an amicable agreement to be reached with your former partner but if necessary, we can represent you in Court.

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Affordable child custody lawyers and child relocation

Affordable child custody lawyers and relocation of your child overseas or interstate

Are you separated and needing affordable child custody lawyers to assist you to implement binding child custody arrangements?

If your former partner is a foreign national, you may be worried about your former partner  relocating your child overseas. In that situation, you will want to have child custody orders or parenting orders in place. It is important for you as well as for your child that there is certainty regarding child custody arrangements for your child.   

Travel for the child with the mother alone to Japan permitted

In the recent decision of the Full Court of the Family Court of Australia in Ardagh & Ardagh (No. 2) [2018] FamCAFC 160, the Full Court upheld the decision of Her Honour Judge Cassidy in the Federal Circuit Court of Australia allowing the mother’s application for the child  to be removed from the watch list (which had stopped the child from leaving Australia) and allowing travel with the child to Japan.

The mother was from Japan but a permanent resident of Australia. She sought to be allowed to take the child to Japan to visit his maternal family who lived there. The Full Court considered it significant that the child had visited Japan on three previous occasions. On two of those occasions, both parents had travelled with the child to Japan and on a visit in May 2016, the mother alone had taken the child to Japan and returned.

The father said that he was “terrified” that the mother would not return to Australia  with the child if she was permitted to go there again with him.

The Full Court noted that Japan has been a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) since 2014. The Hague Convention provides for signatory countries to facilitate the return of children wrongfully removed from other signatory countries.

The Full Court further noted that each party to the Hague Convention is bound to perform the obligations imposed on it in good faith (Art 26, Vienna Convention on the Law of Treaties).

The primary judge had observed that Japan is a Hague Convention country in response to the father’s submission that Japan would not honour its obligations. On appeal, the father sought to support his claim that Japan would not honour its obligations by seeking to rely on part of the annual report prepared in April 2018 by the United States of America Department of State on the operation of the Hague Convention. That report had included a part that addressed “Countries Demonstrating a Pattern of Non-Compliance” and one of the countries identified was Japan.

The Full Court declined to admit that report as evidence and said that it would not admit it even had it been properly proved so as to be admitted. The Court observed that the report addresses issues as between Japan and the United States of America and that it was not relevant regarding Japan’s compliance with its obligations in respect of any other country. The Court said that neither did the report “address whether there was some systemic or perhaps principled reason why enforcement of orders for return to the United States of America were difficult. It has no forensic value at all in a determination of the question of whether the child would be returned if the mother took him to Country W and refused to return him”.

The Full Court said that giving any credence to the fear that the father asserted  whether supported by the Department of State report or at all would be an affront to Japan as a signatory to the Hague Convention.

Contact LGM Family Law for assistance from our experienced family lawyers Brisbane and family lawyers Northside if you require affordable child custody lawyers for arrangements that control any overseas travel for your child with your former partner.

If you are concerned about your child being relocated by your former partner, read on

Relocation of the child to Far North Queensland

The Full Court in Ardagh & Ardagh (No. 2) [2018] FamCAFC 160 confirmed the decision of the primary judge permitting the mother to relocate the child’s residence to Far North Queensland.

The parties had commenced living together in October 2011 and married in October 2013. The child was born in October 2014 and the parties separated in October 2016. For most of their relationship, the parties lived in Far North Queensland and they moved to live in Central Queensland in July 2016. However, the primary judge had found that the mother felt that she did not have a choice but to move and that the father misused his power in the relationship to pressure the mother to move to Central Queensland. The parties had separated shortly after making that move and the father had refused to return the child to the mother after spending time with him, keeping the child for some two months. Orders had later been made for the child to spend time with each parent on a week about basis and this was the living arrangement for the child when the matter was heard by the primary judge.

The primary judge found in effect that the presumption of equal shared parental responsibility applied but she concluded that equal time was not in the child’s best interests. Her Honour referred to the view of the family report writer that an equal time arrangement was not the best for a child as young as the parties’ child.

Importantly, the primary judge found that the parties were unable to communicate effectively about the child’s day to day circumstances. It was this lack of capacity to communicate that caused the primary judge to conclude that equal time was not in the child’s best interests. If the mother was permitted to move to Far North Queensland, equal time would not anyway be reasonably practicable.

The primary judge found that it was in the child’s best interests to live with the mother in Far North Queensland. This would allow her to be amongst friends and in a Japanese community where she would also have work opportunities. The primary judge also took into account that the mother was best able to assist the child in learning about his Japanese heritage and for that reason it was in the child’s best interests to live with the mother.

Contact LGM Family Law for assistance from our experienced family lawyers Brisbane and family lawyers Northside if you require affordable child custody lawyers to address concerns about your former partner relocating your child away from where you live.  We have the experience to assist you to obtain the best possible outcome.

Family company family law on separation

FAMILY COMPANY FAMILY LAW TREATMENT ON PROPERTY SETTLEMENT

If you have separated and you and/or your former partner operates a company family law considerations will include obtaining financial information about that company. Even if you have not been involved in the company, it forms part of the asset pool to be divided with your former partner. You will want to know what value should be given to the interest in that company in a family law property settlement.

This won’t be a problem for you if you have been actively involved in the business and are a director or partner. You should then have direct access to that information.

For some people though, their former partner has operated the business and even though  they may be registered as a director or shareholder in a family business, once separation occurs (or perhaps for all time) they may find that their former partner is preventing their access to any financial information about the business.

It is not uncommon in family law property matters to see that one of the parties to a relationship has effective control of the management of the business whilst the other party has had little involvement, perhaps providing some assistance such as bookkeeping.

Even so, when it comes to dividing the assets of the relationship, the family company or business forms part of the assets to be divided and having the information and documents needed to value that interest is very important.

Disclosure

Under the Family Court and Federal Circuit Court Rules each party is required to make a full and frank disclosure of his or her financial circumstances. Where a former partner is a director of a family company family law requires that that person provides the other party to the relationship with documents such as the financial reports of the company and its tax returns and ATO Notices of assessment.

If your former partner fails to comply with her or his disclosure obligations, you may obtain orders for disclosure if you are involved in a family court proceeding.  If you are not in court, then trying to insist on compliance by your former partner can be a frustrating exercise that may only result in increased legal fees for you if there is no satisfactory response.

Depending upon the set up of the business or company family law aside, there may be alternate options that can be pursued to obtain the information in a more timely and cost effective manner. These options are available through the Corporations Act 2001 (Commonwealth) and through the Australian Securities and Investments Commission (ASIC).

The availability and type of information that can be obtained will vary in accordance with the size of the company being dealt with as different size companies have different filing and accounting requirements. A private company will fall into one of 2 size classifications – “Small” or “Large.”

Specific criteria are used to determine the size classification of the private company in a particular financial year.

A “Large” private company is required to have financial statements prepared in accordance with certain Australian standards, have an annual audit of the financial statements, to lodge financial statements with ASIC and to present the accounts at a shareholders annual general meeting.

A “Small” private company does not have the same requirements. Only where members holding 5% of the issued shares require the company to do so is an audit of financial statements and accounts required.

Other Potential Options Available

Are you a director of the company?

Inspections

If you are a director of the company, provisions within the Corporations Act 2001 (Cth) and at Common Law give you a right of access to the company financial documents. This is on account of your duties and responsibilities to manage and make decisions for the company. If you are a director but have had no real involvement in managing the affairs of the business, an application can also be made for a person such as a lawyer or accountant to inspect the documents on your behalf.

The company must permit the inspection and a person who is a director has the right to take copies of the company’s books.

Meetings

If you have been the less involved or non-participating director of a family company family law will not allow you to convene a meeting of directors. However, under the corporations law,  you may call a meeting of directors of the company where you are yourself a director.  The company constitution will have rules that set out procedures for meetings and how they are called.  Sections 248A-248G of the Corporations Act 2001 (Cth) includes rules for directors’ meeting.   Attending a directors’ meeting can be helpful for you to maintain a role in the management of the company, obtain financial information about the company and to have some control or influence if your former partner/director is acting outside the scope of her or his authority.

Are you a shareholder of the company?

Access to the Company documents

In contrast to a director of the company, the documents a shareholder or member of the company is entitled to obtain is limited to official documents rather than accounts and financial records (unless the company itself is party to a proceeding such as a family law proceeding).

Directors of a company (and shareholders by resolution passed at a general meeting) can permit access to company books but this is less likely to occur if the company is controlled equally by separated partners.

Where an application is made in writing to the company, a shareholder of the company is entitled to receive a copy of the company constitution. This may also be obtained by making a request to ASIC, if they have previously required that the constitution be lodged with them.

Shareholders are also entitled to have access to the minute books of the company for meetings of shareholders as well as the resolutions passed by shareholders.

A register of the company members can also be inspected and copies obtained.

If the company is solely owned by the former spouses/partners, the Family Court can order that directors’ minutes be provided.

Meetings

Any two or more shareholders holding at least 5% of the company’s share capital can call for a shareholders meeting.

As a shareholder, you are entitled to receive notice of all general meetings of shareholders and to ask questions at the meeting.

Tactical decisions

Like any decision made in your Family Law matter, it is always best (although often difficult) to make a cost versus benefit analysis when considering your options.

It may be more practical and time-saving for you as a separated partner to consider convening a meeting of the company family law “financial disclosure” obligations of your former partner may be a more difficult path depending upon the attitude of your former partner and whether you are at court to obtain disclosure orders. Convening a meeting may avoid delays, costs and limitations which can be involved in discovery (disclosure) through the Family Court or through the subpoena processes.

LGM Family Law has the experience to deal with complex property matter issues, including those involving multiple businesses, corporations and trust structures. We aim to resolve our clients’ matters quickly, cost effectively and amicably with the former partner. Where it is necessary however, we will recommend legal proceedings and represent you through to obtaining final orders.

Contact our experienced Brisbane family lawyers or  family lawyers North Brisbane who are ready to assist you to resolve any asset or property division with your former partner.