Access our article library below

Parenting Arrangements after Divorce

Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.

Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.

When parents agree

Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.

A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).

When parents don’t agree

If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).

The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.

The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.

What to consider when creating a parenting agreement?

When making parenting arrangements, parents may consider a range of issues including:

• The capacity of each parent to provide day-to-day care?
• The age of the children?
• The arrangements for the children before and after school and during  school holidays?
• Will the children spend their time with other significant people in their lives, like grandparents or other relatives?
• The children’s educational needs?
• Any cultural considerations?
• The special needs of the children, including educational and medical?
• The children’s wishes, having regard to their age and stage of development?
• Other practical considerations such as transport and accommodation expenses?

While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.

Relocating with children

If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.

The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.

What’s next?

Consider what is best for your children’s short-term and long-term wellbeing.

Work out what concerns need to be addressed in your parenting arrangement.

Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).

Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues.

Divorce Lawyers in Melbourne

Mathews Family Law and Mediation Services were established more than fourteen years ago as a boutique family law firm. Our offices are located in the inner Melbourne suburb of Toorak.

Our team of lawyers is experts in Family Law and Family Law Mediation. We have extensive experience and knowledge that allow us to provide an integrated approach to the complex range of issues faced by our clients. We are in a unique position whereby our family dispute resolution practitioners (FDRP) and mediators have also accredited family law experts; this ensures we bring a higher level of expertise to all our mediations.

Unlike many other family law firms, Mathews Family Law has a genuine commitment to alternative dispute resolution. This commitment is evident in the diverse range of dispute resolution options and services we offer that clients are unlikely to find anywhere else

Top Divorce Lawyers in Australia

We are passionate and dedicated to providing the best possible Family Law service in Melbourne. We have worked hard to gain expertise in all areas of family law, including complex international parenting and financial matters.

We can guide you through a wide range of issues related to legal separation in Australia. This commitment ensures we are at the forefront of family law developments in Melbourne. Vanessa Mathews was one of the first accredited family law specialists also to become accredited as an FDRP and Mediator. The Mathews Family Law team continues to provide professional development services for accountants, financial advisors and mental health professionals. We are vigorously committed to continuing to provide community service for a wide range of new initiatives. We provide all the personal service you expect of a boutique law firm with all the experience and knowledge you expect to find in a larger firm.

A firm with a strategic vision and the leadership to effect change in culture, strategy and business growth.

Mathews Family Law’s vision has always been to provide affordable access to the highest quality family law services and essential legal information. We have embraced the use of technology to support this goal. By using online platforms, Mathews Family Law can reach a much wider audience (including overseas), vastly improving the efficiency of our internal processes which results in a decrease in costs to our clients.

Via our website and Facebook page, we offer an extensive library of free explanatory videos, Facebook live recordings, downloadable e-books, radio interviews and blog articles. A valuable resource for those seeking detailed information on the public’s most frequently searched topics.

In 2011, MFL pioneered online divorce applications with www.divorce-online.com.au. and has since developed its web-based family law pathway. This process allows clients to enter their details online and obtain a personalized preliminary report, free of charge. Should the client engage the firm, this background information is used to prepare for the initial meeting with the client’s data automatically populated into various documents.

Other recent IT enhancements include interactive online forms, options to attend meetings, mediation and FDR via webcast, online payment portals and handy calculators.

All our clients benefit from clear, fully itemized invoices and trust statements with every interim invoice along with pre-payment of disbursements.

Although a boutique law firm, Mathews Family Law can offer the full breadth of family law services that all clients desire. Our clients are not left having to consult across multiple organizations to get the outcome they desire. Our services include the full range of family law dispute resolution services; such as negotiation, mediation, FDR and litigation.

MFL can also provide a secondary consultation role with institutional clients and allied professionals; this includes Relationships Australia, CatholicCare and CPAs/IPAs.

MFL is continually seeking to improve its services and enhance its performance. The firm’s principal, Vanessa Mathews, regularly consults with external experts to review the firm’s strategy, structure and operations and never shies away from creating new processes and adopting change.

Mathews Family Law Accreditations and Associations.

• Accredited by the Law Institute of Victoria
• Members of the Law Institute of Victoria, Family Law Section
• Members of the Law Council of Australia, Family Law Specialization Advisory Committee
• Members of Relationships Australian Family Lawyers Panel
• Fellow of the International Academy of Family Lawyers

FDRPs and Mediators at Mathews Family Law are:

• Accredited by the Attorney General of Australia
• Accredited by the National Mediation Accreditation system
• Members of the Australian Institute of Family Law Arbitrators and Mediators
• Members of the Resolution Institute
• Members of the Relationships Australia ‘Access Resolve’ Property Mediation Program

Divorce Law in Australia

Divorce law in Victoria is the same as in other states in Australia (except Western Australia). The Family Law Act (1975) applies to all Australian states and territories except Western Australia. A judge deciding on a parenting or financial matter will follow the same rules, procedures and legislation to make their decision. The unification of laws across all the states (except Western Australia) means that Family Court orders obtained in one part of Australia will be enforceable anywhere else in Australia. The child support legislation also applies in Melbourne & across Australia. Intervention orders are also recognized and enforceable across state and territory borders.

Under Australian Law, you can apply for divorce after separating for at least one year. The Family Law Act (1976) instigated the ‘no-fault’ system of divorce in Australia. The only condition required is that the marriage has irretrievably broken down. The facts about who is responsible for the breakdown of the marriage are not relevant. If dependent children under the age of eighteen are involved, a divorce will only be granted by the court if proper arrangements have been made for their welfare. If you have any queries about divorce law in Australia, get in touch with us.

Some Common Family Law Myths

That the mother is favored in parenting matters:

There is no presumption that a mother or father is a ‘better’ parent. The child’s ‘best interests are the paramount consideration.

That same-sex parents are treated differently from opposite-sex parenting matters.

There is no sexuality-based presumption or laws that are applied to same-sex parents. Again, the child’s ‘best interests is the paramount consideration.

The children will live 50/50 with each parent

There is no ‘one size fits all’ parenting presumption. The child’s ‘best interests are the paramount consideration.

The asset pool will be divided 50/50.

There is no ‘50/50’ asset division presumption. The asset pool will be divided according to the particular circumstances of each case, including the various contributions made by each of the parties and their future needs.

I have to be divorced before I can apply for a property settlement.

No, you may apply for a property settlement any time after separation and before the divorce (and up to 12 months after divorce).

Pre-marriage agreements are not worth the paper they’re written on

‘Pre-nups’ are enforceable provided they have been prepared in accordance with the strict legislative requirements.

I don’t live with my partner full time so we are not in a de facto relationship

The amount of time you live with your partner is not the only criteria the court will consider when determining if a de facto relationship existed. A de facto relationship may be found to have existed where the parties lived with each other on a part-time basis only.

Experienced Divorce Lawyers in Melbourne Who Take Their Corporate Social Responsibility Seriously

Mathews Family Law firmly believes in its corporate social responsibility. We also believe that corporate social responsibility is best demonstrated via actions rather than words. The firm’s Principal, Vanessa Mathews, has a Degree in Social Work from Melbourne University. She is passionate about providing low-cost and pro-bono access to information and justice. Ensuring every demographic in the community is well supported and has access to expert Family Law advice.

MFL maintains four content-rich websites, with informative videos, a Family Law Library of articles and videos, online calculators, chat and applications processes, all provided free of charge. Regular Facebook Live videos, e-newsletters and other social media posts also disseminate valuable information at no cost, and through channels that are easy to access by the wider public.

We also have several other measures that provide affordable access to the firm’s services – free initial telephone consultations, reduced fixed-fee initial consultations, fixed-price services and a choice of unbundled or full-service delivery options.

MFL is involved in the LIV Referral Service and provides education to other professionals. We actively work to create a strong Family Law community, with representatives participating in the following organizations: Relationships Australia Family Lawyers Panel; LIV Specialist Committee; International Academy of Family Lawyers.

Award Winning Melbourne Family Lawyers

Mathews Family Law is a multi-award-winning family law firm operating out of the Melbourne inner suburb of Toorak. Some of the recent awards won by the firm include:

• Winner – Boutique Family Law Firm of the year in Australia, Global Law Experts
• Winner – Family Law Mediator of the year in Australia, Global Law Experts
• Finalist – Law Institute of Victoria ‘Boutique Law Firm of the Year Award’
• Recommended – Family Law Firm, Doyles Guide
• Recommended – Family Law Mediator, Doyles Guide
• Leading – Parenting Lawyer, Doyles Guide
• Number One – Family Law Firm on ‘Three Best Rated’

If you are looking for Melbourne’s best family lawyers look no further than Mathews Family Law, Book a Free consultation today to start the process.

Parenting Plans

A Parenting Plan must deal with one or more of the following matters:

• the person or persons with whom the child is to live,
• the time that the child is to spend with another person or other persons,
• the allocation of parental responsibilities for a child,
• how parents consult about decisions to be made,
• communication the child is to have with others,
• maintenance of a child,
• how to resolve disputes about the plan,
• how to change the plan to for changing needs of the child parents and
• any aspect of the care, welfare or development of the child or any other aspects of parental responsibility for a child.

A Parenting Order may be varied by a later Parenting Plan, but Parenting Plans cannot be enforced as an Order. When an application is made to a Court for Orders in relation to a child, the most recent Parenting Plan will be considered, if it is in the child’s best interest.

A parenting plan will be unworkable where:

• both Consent Orders and the plan deal with the same subject matter.
• the plan is vague and uncertain,
• the plan is silent on important issues or
• the plan deals with issues that cannot be part of a parenting plan such as Child Support or spouse maintenance.

Why Every Family Should have One

Divorcing parents are often so busy with their own anger or arguing over who gets what to remember their most important shared property their children.   By law, parents have a shared responsibility, which means that both parents must take care of their children’s financial, emotional and physical needs.  Family law in Australia encourages parents to work together on these issues and encourages families to create a “parenting plan” before divorce or the termination of a de facto relationship.

The purpose of a parenting plan is to detail the responsibilities and rights of each parent in order to do what’s best for the children.  A good parenting plan includes a day-to-day schedule for the children,  a break-down of time that each parent is to spend with the child for every day of the year, including all civil, religious and school holidays, payments for all of the various expenses, including medical, dental and after school activities, and how the parents will settle future disagreements. The court cannot grant a divorce order until it is satisfied that proper parenting arrangements are in place.  If parents are unable to create a parenting plan on their own, the court will do it for them.

The best parenting plan is one made by the parents themselves. Some parents are able to do this on their own, or with the help of a mediator or another trained professional in other methods of Family Dispute Resolution.

While a parenting plan is an agreement between the parents and cannot be enforced by the courts, there are legal remedies if a parent does not follow the plan.  The other parent may turn to the court and the court may make new orders based on the original parenting plan.

Below are five reasons to make a parent plan.

Everybody knows where they stand

A good parenting plan will include everything from which nights the children sleep at Dad’s house to what religion they will be brought up in to how the parents will settle disagreements between themselves. This limits places for disagreement and fighting between parents and gives them the tools to resolve disputes when they arise.  There’s no disagreement about where the kids will go for Christmas because it’s written in the plan.

More importantly, the children have stability. No matter what the arrangement, divorce or separation is hard on the children.  But having a regular routine, knowing that both parents agree on a particular decision and maintaining a loving relationship with both parents will make the transition and the coming years  easier.

Building Trust

Most likely, there is a lot of mistrust with the termination of the relationship.  Oddly, a parenting plan can help parents rebuild their faith in one another.   Creating the plan may also allow parents to hear from their children what they need and want.   Children, who may feel insecure in the new family setup, may be able to find a way to overcome emotional insecurity and learn to trust the family relationships again.

Starting Fresh

Laying out the plan ahead of time is not just good for the kids. it’s good for the parents too.  Following divorce or the end of a de facto relationship, parents have their own issues to cope with – living on one income, taking care of a home, and perhaps, even starting a new relationship.   Each parent needs to find time for him or herself to begin fresh but still be a responsible, caring parent.  A parenting plan that lays out the when and where, and leaves less room for surprises creates stability and structure for the parents as well as the children.

Financial Planning for Present and Future

A good parenting plan will detail who covers which expenses.   In addition to the basics like food and clothing, there are many “extras” that also need to be considered, including special medical and dental expenses, after-school activities and summer camp.  As children get older, parents need to think about driving lessons, university fees, and even weddings.  A good plan will take the future  and not just the current month or year  into consideration.  The current parenting plan doesn’t need to have all of these expenses included already, but it should provide a way for the parents to work out the division of these costs as they arise.  For example, parents may agree on percentages of incomes to be paid to a university fund for each child.    This prevents arguments between the “ex’s” and allows both sides to properly plan for the future.

A method for working it out

No plan is foolproof, and one of the most important parts of a good parenting plan is the mechanism for settling disputes.  For divorcing couples, this might even be the first time there is a plan for such inevitabilities in place.  Each family must figure out what works best for them.   Some may settle disputes by meeting over coffee in a neutral place.  Others may feel an outside mediator is necessary.   In many cases, just knowing a system for resolving problems exists helps families work through any difficulties that arise.

And one last note…..

Despite the plan, parents should remember that parenting doesn’t always follow a plan, despite the good intentions of both parents.   It’s inevitable that one parent will suddenly have an amazing work or vacation opportunity and ask the other parent to fill in, or a child will want both parents to be involved in a special project.   Parents need to remember that the children are at the center of any good plan.  They are not machines, they can’t always follow the adult rules parents make for them and they have their own needs and wants.   Parents need to remain open-minded, flexible and fair, even if every detail is not written into the plan.

I’m thinking of separating, what do I need to know?

Separation is never easy, especially when children are involved. There are always lots of issues that need to be addressed. You may need to organize new financial arrangements, possibly arrange new accommodation and transport. Then there is the difficult job of informing friends and family, which can affect your long-standing friendships. When children are involved a great deal of care needs to be taken to ensure their lives and wellbeing get impacted as little as possible.

Even if you are not married, separation can still be complicated and involve legal paperwork. When children, child support, maintenance and property are affected by separation, legal advice and formal documents of agreements reach is likely to be of assistance.

Disputes and Resolutions

Following separation, there may be disagreement about the management of parenting and financial issues. Family Dispute Resolution mediation, supported by your own legal advice, soon after separation may be of assistance and help to avoid disagreements becoming entrenched.

Family Violence

Family violence is a major reason for relationship breakdown. If you are experiencing family violence, please contact your local police who can provide immediate assistance and / or family violence support service who can support you to understand your situation and help you to formulate options for moving forward. Legal advice about parenting, child support, maintenance and property settlement issues may be of assistance at this time.

Talk with a Mathews Family Law & Mediation Specialist

Just as no two experiences of relationship breakdown will be the same, there is no ‘one size fits all’ approach to the resolution of issues arising from the breakdown of a relationship – what works for one person may not necessarily be the right solution for you.

Mathews Family Law is one of the most experienced family law firms in Melbourne with the knowledge to guide you through the most challenging of experiences.

If you are contemplating separation or divorce, book in an obligation free 15-minute consultation with one of our accredited specialist family lawyers to understand your rights and options.

Contact us today for a free consultation.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

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

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimizes cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counseling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained in how to give advice concerning disputes but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you choose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. The benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order however in most cases, it is a parent, the child, or a grandparent who is seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point, the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail the responsibilities and rights of both parents and its aim should be to create an arrangement in the best interest of the child. A parenting plan should include a breakdown of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on its own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, a conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and acting in the best interest of the child. The presence of an ICL should minimize the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they choose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child-related issues

The court takes on several principle roles when it comes to child-related proceedings. First, during the proceedings, the court is to consider both the needs of the child and the impact that the proceedings may have on the child. Essentially, the court’s role is to minimize any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally, the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, and the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

• application and affidavit of the parties
• expert affidavit
• oral evidence (testimony)
• testimony/reports from an independent children’s lawyer
• family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

Property

One of the most important, and perhaps the most difficult, issue facing couples who separate is the question of ‘who gets what?’ The Family Law Act provides for property settlements same sex couples. Most property settlements are dealt with by the Federal Circuit Court or the Family Court.

The laws relating to property settlement at the end of a same sex couple relationship have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements than they would have had under state law.

Depending on the length and dynamic of the relationship, as well as the way that the parties have arranged their finances, a property settlement can be quite simple or involve complex negotiations.

Both financial and non-financial contributions are taken into account when determining de facto property division. The new changes to de facto laws now allow for future needs and superannuation splitting arrangements to be considered as well. The Court will consider the financial and non-financial contributions made by each party and divide the property in a manner that is just and equitable.

Strict time limits apply to commencing property settlement proceedings in a Court. You must apply for a Court Order within two years from the date your same sex couple relationship ends. It is important that you seek proper legal advice as soon as possible.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

Mathews Family Law is a leading Australian family law firm. Please contact us on +61 3 9804 7991 to speak with our family and divorce lawyers today. You can also send through your enquiry online now and we will contact you shortly.

Child Relocation from Sydney to Newcastle

Wilson & Wilson – [2013] FamCAFC 43

This is an appeal on parenting orders granted by the Federal Magistrate Court.  The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle.  The appeal was accepted and remanded for a rehearing.

The father, aged 57 and the mother, aged 52, had one child together, born in 2001.  The parents bought a home together in Sydney in 2004 and separated in the summer of 2007.  At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.

Initially, the parents were able to work out parenting arrangements.  From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning.  When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused.  The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.

The mother had several reasons for relocating.  The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney.  She also wanted to reduce her work hours in order to spend more time with the child.  Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney.  She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father.  The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.

The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends.  The child was close to both parents, but had a stronger relationship with his mother.  An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him.  The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits.  Additionally, he would be seeing his father less frequently.

While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well.  She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by.  She would also be required to work her current hours, or longer, in a place where she felt isolated.  The father, on the other hand, was not required to make any changes.  The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”.  The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.

Lower Court did not Weigh Evidence Correctly

The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness.  Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child.  In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”.  The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child.  The case was sent back to the lower court.