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Here is a link to one of the best children custody programmes we have seen on how best to help your kids through separation . It is so had sometimes to know what to do, and this helps clear that up a little through children's own words. http://news.sbs.com.au/insight/episode/index/id/61 Thanks to Marita Kitchiner ( Family Lawyer at the Rockhampton office for tracking this programme down online for us. ARTICLE BY ANTONIOUS ABDELSHAHEID.. RECOVERY OF CHILDREN Urgent Applications Introduction More and more cases coming before the court now involve parents asking the Court for them to be able to spend equal time with their children. In most of these cases the other parent will be asking that the other parent be permitted to be able to spend only ‘substantial and significant’ time with the children. Both of these scenarios involve more than the traditional alternate weekend arrangements which are now considered, in most cases, obsolete. In all of these cases the Courts must apply newly legislated principles to each factual scenario. These principles were first handed down by the Australian legislature on 1st July 2007, and now, more than twelve months later, most lawyers can tell you, with a reasonable degree of certainty, whether or not you will be successful in seeking ‘equal shared care’ or ‘substantial and significant time’. What happens when you first separate? In a lost of cases after parents separate, they will make informal arrangements with one another about the time (and communication) each of them will have with their child/ren. Disputes about time and communication can often occur immediately after separation, or some months or years later. Parents then find themselves in a position where they are uncertain about their rights and obligations under the law, and in need of legal advice about what to do. Parents often do not know how their dispute would be resolved by a Court and how much time a Court would find they should spend with their child/ren. 1st July 2006 Amendments to the Family Law Act 1975 On 1 July 2006, the law changed with respect to parenting matters with the coming into effect of the Family Law Amendment (Shared Parental Responsibility) Act 2006. A new formula was put into a legislative framework for determining the best interests of children. That framework is set out below. 1st July 2007 Amendments to the Family Law Act 1075 On 1 July 2007, there was a further requirement put into law that people in dispute over parenting matters must attend a compulsory family dispute resolution service (for example mediation) to resolve their dispute. People (who don’t already have a Court Order) no longer have the option of going straight to Court, except in very limited circumstances. While attending at that mediation there is a further requirement that you make a genuine effort to resolve the issues in dispute. Only then will a certificate be issued enabling either party to commence proceedings in the Federal Magistrates Court of Australia or the Family Court of Australia should matters not resolve at the compulsory family dispute resolution service. Purpose of the LegislationThe purpose of the changes to the Family Law legislative framework are to ensure that the best interests of children are met by: ● Ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent possible. ● Protecting children from harm. ● Ensuring children receive adequate and proper parenting. ● Ensuring that parents fulfil their duties and meet their responsibilities concerning their children. Certain principles underly the amendment of the legislative framework and those are: ● That children have the right to know and be cared for by both parents. ● That children have the right to spend time with both parents. ● That parents jointly share duties and responsibilities concerning their children. ● That parents should agree about future parenting of their children. ● That children have the right to enjoy their culture with people who share that culture (in this instance this particular principle is not terribly relevant). How the Court Determines What is in a Childs Best InterestsWhat does the Court take primarily into consideration? The primary considerations for determining what are in a child’s best interests are as follows: 1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and 2. The need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. What other considerations are there? When the Court is determining the best interests of children, it will consider the following in addition to that above: · any views properly expressed by the child; · the nature of the child’s relationship with each of the parents and other persons of significance (such as grandparents); · the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (on your instructions it appears that the Mother of the children is refusing to any way facilitate your relationship with your children since separation); · any change in the child’s circumstances; · the practical expense of the child spending time with the parent that the child does not live with; · the capacity of any adult caring for the child to provide for the needs of the child; · of the maturity, sex, lifestyle and background of the child; · the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents; · any family violence involving the child or members of the child’s family; · any family violence order that applies to the child or a member of the child’s family; · whether it would be preferable to make an order that would be least likely to lead to the further institution of proceedings in relation to the child; and · any other factor or circumstance that the Court thinks relevant. What else will the Court look at? When reviewing the willingness and ability of each of the child’s parents to encourage a relationship and the attitude to the child on the responsibilities of parenthood, the Court will consider: ● Whether a parent has failed to take an opportunity to participate in making decisions about the child or to spend time with the child or communicate with the child. ● Has facilitated or failed to facilitate decisions about the child, spending time with the child or communicating with the child. ● Has fulfilled or failed to fulfil the parents obligation to maintain the child (example by Child Support). ● The Court must have regard to events that have happened and circumstances that have existed since the separation occurred. Court to Consider Child Spending Equal Time in Certain CircumstancesWhen making a parenting order, the Court must now consider: 1. Whether spending equal time with each parent is in the best interests of the child. 2. Whether spending equal time with each of the child’s parents is reasonably practicable. 3. If it is reasonably practicable make an order for the child to spend equal time with each of the parents. 4. Reasonable practicality is determined by factors such as: (a) how far the parents live from one another; (b) the parents current and future capacity to implement an arrangement for the child spending equal time with both parents; (c) the parents capacity to communicate with one another about the arrangement; (d) the impact such an arrangement would have upon the child or children; (e) such other matters that the Court may consider relevant. What will happen if equal-time is not in the best interests of the child/ren or is not reasonably practical? IMPORTANT: There is no presumption that a child should spend equal time with each of its parents. In the absence of family violence and/or child abuse the Court must consider equal-time, but it is never bound to give it to you. There are often strong practical reasons why the Court will not order equal-time. If it is not in the best interests of the child or it is not reasonably practicable to put in place an equal time arrangement the Court must make an order for the child to spend substantial and significant time with the parent that the child does not live with. The Court does this by determining again what is in the best interests of the child. The only circumstances where an order for substantial and significant time will not be made is where there are indications of serious family violence or child abuse or further indications that it really is not in the best interests of the child for that particular child to spend substantial and significant time with one of its parents. Is substantial and significant time the same as traditional alternate weekends and half the holidays? The simple answer to this is – no. Substantial and significant time is quite different is only limited by what is determined to be in the best interests of the child. An order for substantial and significant time must include an order for the child to spend time with the parent on the following days and at the following times: · days that do not fall on weekends · holidays · days of special significance - such as Christmas Day, Easter Sunday, the child’s birthday, Mother’s Day and Father’s Day · time that allow the parent to become (if they are not already) involved in the daily routines of the child That is, the Court must in most circumstances include in the Order that the child spend time with the parent on a week day. This may involve the child spending mere hours with that parent on a given day (for example, after school) or the child may stay with that parent overnight. False AllegationsIn Family Law we sometimes, sadly, discover that parents are so alienated from one another and in such a high level of conflict that they will say and do almost anything to stop the other parent remaining meaningfully involved in a child’s life. They may make false allegations of abuse or violence against a parent, or may tell the Court the child has made certain disclosures which the child did not make. When proceedings are brought before a Court and the Court is satisfied that a party of the proceedings knowingly made a false allegation or statement in the proceedings, the Court must order that party to pay some or all of the costs of the other party to the proceedings. Not only are such allegations tantamount to perjury, but they may have other significant repercussions in a child’s life, as well as having significant other penalties. Obligations of Legal AdvisersIn accordance with Journey’s obligations under the new legislative framework, we advise as follows: 1. You must consider at all stages either in the proceedings or in reaching an agreement in relation to a child that, if the child is spending equal time with each of the parents, is reasonably practicable and in the best interests of the child – you must consider an arrangement of that sought. 2. If equal time is not reasonably practicable or it is not in the best interests of the child, then you could consider the option of an arrangement of a child spending substantial and significant time (which is more than the traditional alternative weekend arrangement) with the parent. 3. Decisions made in relation to parenting agreements, plans and orders should be made in the best interests of the child. 4. Matters that may be dealt with by way of a parenting order are: (a) the person or persons with whom the child is to live; (b) the time the child is to spend with any other person or persons; (c) the allocation of parental responsibility for a child (whether it is to be shared or whether it is to be sole parental responsibility); (d) if two or more persons are to share responsibility, the form of consultations about that responsibility; (e) the communication the child is to have with another person or persons; (f) maintenance of a child; (g) the processes to be used for resolving disputes about terms or operations of the plan (example attending mediation); (h) the processes to be used to a change in the plan; (i) any other aspect of the care, welfare or development of a child. 5. If there is a parenting order in force in relation to a child, the order may include a provision that the order is subject to any parenting plan that the parent subsequently enter into. 6. It is desirable to include in any parenting plan or order that deals with a form of consultation in relation to decisions to be made in the future and the form of dispute resolution to be used in avoiding future conflict and a way to change any order or agreement in the future. 7. Programs are available to assist in relation to making a parenting order or parenting plan, including programs such as the Relationships Australia “Keeping up Contact” program. 8. In the event that any matter proceeds to Court, the Court must have regard to the terms of the most recent parenting plan or order when making a parenting order if it is in the best interests of a child to do so.
Questions or Queries
If you have any questions or queries about this fact-sheet, or wish to discuss its contents further, please do not hesitate to contact your family law solicitor at Journey who will be more than happy to assist you.
© Journey Lawyers Pty Ltd
Now Read Chris's Turnbull's article below. Chris published an article in the Proctor ( the Queensland Law Society publication, and the Northern Territory law Journal when the laws changed to shared parenting regime under the Family Law Act. His excellent article on recent developments in Children's matters appears below. Children's cases. ( the case of Goode) HERE IS THE LATEST ARTICLE BY CHRIS TURNBULL ON CHILDRENS CASES AND IN PARTICULAR INTERIM CHILDRENS CASES. If you are facing something like this, here is a great resource. You may have to read it a few times, as there has been a real change after the case of Goode, late last year. The Case of Goode: A new approach to interim parenting arrangements A recent decision of the Full Court of the Family Court of Australia has changed the way that Courts will deal with Interim Applications for Parenting Orders taking into account the changes to Family Law that took place in July 2006. When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time. Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day. Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing. On the 15th of December 2006, the Family Court of Australia delivered the decision of Goode & Goode [2006]FamCA1346 (15th December 2006). This was a decision on appeal from a single Judge of the Family Court of Australia in Parramatta in relation to an interim decision for two children, T (8 years of Age) and J (2 years of age). Essentially, the Court found that it should continue the existing arrangements that were in place as at the date of the interim hearing pending a final decision. Those arrangements had been that children live with the Mother and spend some time with the Father that was largely confined to the “traditional” regime of alternate weekends, school holidays and the like. Family Law Practitioners have been using the formula that the Judge at first
instance used which comes from a 1999 case called Cowling. It provided that, at
an interim hearing: In most cases, this meant that the arrangements that had been in place since the separation would continue unless some exceptional circumstances applied, such as there being good evidence of family violence, abuse, neglect or such other similar factor. No doubt, you will be aware that the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into effect on the 1st of July 2006. Much has been said about what the amendments actually mean but, for Lawyers, the process of interpreting the amendments still underway. In particular, the principles that were applied at an interim hearing had or should have been, up until the 15th of December, exactly the same as that applied prior to 1st of July. The decision of Goode changes the formula for use at an interim hearing. Things that are the same about an interim hearing: Goode’s case reminds us that interim proceedings are as they were and are unchanged. This is helpful as there are some suggestions that interim hearings would become “mini-trials” in which the substantiate Applications of parties would be heard. However, it is still the case in interim proceedings: a) That they are limited to two hours b) That the Court can not make or should not make findings of fact in contested as a general proposition c) There will still be no cross-examination; and d) The Court will still proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives. The new formula: Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. It is our view that it is more likely the Court will make Orders for a child to spend substantial and significant time but may be a little reluctant to Order equal time. The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children. If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time. Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula: 1. Identify the competing proposals of all the parties What sort of findings can the Court make on an interim basis? It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows: 1. T attends school and J attends childcare on three days a week on Monday,
Thursday and Friday from 8:30am to 4:30pm when the mother works.
It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases. While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made. Chris Turnbull Solicitor Journey Family lawyers
This is the leading new case in Family Law about shared parenting and what it means. I have put the link only because it is 43 pages long but it makes fascinating reading if you are in a situation where you are concerned about parenting arrangements for your kids. It is a bit difficult to follow, so don't say you weren't warned! To assist we have also set out the releveant sections of the Family Law Act and a link to the old case of Cowling which is no longer good law.
http://www.familycourt.gov.au/presence/resources/file/eb000e48465af60/2006_FamCA_1346.pdf http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/family_ct/1998/19.html?query=cowling FAMILY LAW ACT 1975 - SECT 61DA I am not sure about the graphs though, but see what you think. http://www.parentingtime.net regards the Journey team
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