Warning: Delays in Court Expected

 

Families and Children look set to suffer more in Queensland than anywhere else in Australia Court.

If you are contemplating going to either the Family Court of Australia or Federal Circuit Court of Australia to settle issues relating to the breakdown of your relationship including issues surrounding who your children spend time with, you could be in for a rude shock.

It now seems certain that timeframes for your matter to be heard will increase considerably due to the movement away from the Brisbane Registry of the Family Court and to the Appeal division of such Court.

Justice Graham Bell retired last year and it was announced in late 2015 that Justice Michael Kent was promoted to the Appeal division of the Family Court.  Judge Demack of the Federal Circuit Court in Brisbane has accepted a permanent posting in Rockhampton further depleting the stock of family law judges in Brisbane. This means that now there are only two judges sitting in the trial division of the Family Court in Brisbane to determine matters in the Court.  Subsequently, the already overwhelming demand on the Family Court in Brisbane will be stretched further, undoubtedly pushing back hearing and trial times which already can be set down for a time more than 12 months in the future.  Further to this, any judgments made by these judges post-trial may also be delayed as the judge’s workloads increase.  It is already not uncommon for a judgment to be handed down more than 12 months after the trial of a matter.

As a result of this, the Federal Circuit Court of Australia (which deals with the majority and less contentious of family law disputes in Australia) will be placed under more pressure to handle its caseload as the Family Court will not be able to assist in determining as many cases.  The Federal Circuit Court is already experiencing similar delays to that of the Family Court of Australia.

When you consider that this will leave Brisbane with 10 Judges in the Federal Circuit Court, two in the Family Court and two in the Appeals division of the Family Court (who only hear appeals to decisions and not cases at first instance), compared to 15 Federal Circuit Court Judges in Melbourne and 21 in Sydney (not to mention the further judicial members of the Family Courts and Appeals Courts in both other cities), it seems clear that the Brisbane families will experience long delays.

All of this could very easily mean that from the date you file your Initiating Application with the Court you may be waiting in excess of three years to have a result.

Consider what this will mean for family relationships.  A father or mother who may be fighting to see their young child may not see them for all of this time.  By the time the parent and child are reunited the child may have no understanding of who that person is and will have no bond with that person.  On the other hand, if the child is 12-14 once proceedings commence the child may well be nearing adulthood by the time a decision has been handed down, and thus the parent and child will have lost the final years of childhood with that parent.  Scary stuff indeed.

Consider also the dramatic increase in cost over this time of retaining legal representation over that time.  IT will cost significant time with family members, substantial cost and untold stress on Queensland families.  Suffer the little children indeed.

For a Delays in Court which holds the best interests of the children as their paramount consideration, it seems clear that something must be done to increase judicial staff in Brisbane and that is a cause we should all consider our role in supporting.

So how do we avoid these delays?  Read Family Lawyer Charles Noble’s next article on Alternatives to Court and how it can save you time, money, and stress.

Article Source: Family court Australia

What is Power of Attorney and When Would You Need It?

In simple terms, a power of attorney is a legal document where a person is nominated to act on your behalf (known as the agent) regarding your affairs. The document gives the nominated party the legal capacity to make decisions for you on things like financial matters and other duties.

The person given attorney does not have to be a lawyer, although in many cases a law firm is enlisted to act as power of attorney.

Some common tasks of those entrusted with power of attorney can include, but are not limited to:

• The buying and selling of property
• Operating bank accounts
• Organising the paying of bills and debts
• The power to vote in meetings
• And lots more…

The tasks involved will depend on particular circumstances and what the principal (the person delegating the power of lawyer) requires and stipulates.

When Might You Need To Delegate Power of Attorney?

Many people only assume power of attorney is entrusted to someone when the principal no longer possesses the mental capacity to make sound decisions, such as in the case of someone with Alzheimer’s or suffering an incapacitating illness or injury.

While this is often the case, the are other scenarios where you may need to consider giving someone you trust the power of Solicitor, even on a temporary basis.

One such instance is when you might be required to spend a significant amount of time overseas and find it too difficult to handle all your affairs back home from abroad.

If you, the principal, lose your capacity to make decisions, then the power of attorney you delegated will cease.

Enduring Power of Attorney

With the enduring power of a lawyer, you are empowering your legal representative to look after your affairs. This can be immediate or specified to come into effect at a later date in the event that you lose your mental capacity to make your own decisions.

In this case, your lawyer handles those decisions for you and takes care of any tasks nominated in the power of attorney document. In some cases, this could even include decisions regarding things like medical treatment and financial matters.

Will and Estate Planning Brisbane

When it comes to preparing wills, estate planning, and matters regarding the power of a lawyer, your local and highly experienced law firm in Brisbane is Aylward Game Solicitors. If you need advice regarding the delegation of power of solicitors to someone you trust, then think of us first. 

Article Source: power of attorney 

2015 Family Law Review: What A Year It’s Been

 

What a year it’s been. Winding up the practice in South Brisbane and moving to the big smoke in March this year.

2015 Family Law Review: What A Year It’s Been and to have their assistance when dealing with the complex issues which can arise in the breakup of entities, partnerships and trust and determining the best ways of restructuring such entities after a family break up. The knowledge of the lawyers in the firm has been invaluable in dealing with the complex issues which arise from time to time.

The Family Law Section of the practice now has 2 Accredited Family Law Specialists and a very experienced family solicitor who practices exclusively in Family Law Review. We also have the benefit of a very experienced Family Law in house counsel. It has been invaluable to maintain the family law matters “in house” when dealing with a matter in the Family Court. The benefits and cost savings to our clients have been appreciated.

Our family lawyer Charles experienced many successful outcomes for his clients in the Family Court. Some of his achievements were the recovery of children from Victoria who were returned to the care of their mother. He helped an African mother keep her young children when the Department of Children’s Services intervened. Her African customs in raising children differed from the parenting we experience in Australia. The mother benefited from expert advice from Charles and the Court was satisfied the children would be well cared for in the mother’s care.

We achieved successful outcomes in negotiations and collaborative matters when both parties were happy with the settlement which they themselves achieved.

We provided many 20 minute free consultations to parties affected by recent breakups in their families. These consultations helped them to deal with the many issues which arise in such circumstances. We were only too happy to give our advice and assistance to them.

I have enjoyed the various networking events with my fellow collaborative practitioners. I have re-joined the committee of Queensland collaborative law which celebrated its ten year anniversary this year. It’s incredible how collaborative practice has grown over this short period of time. A very successful celebration was held at the office of Vincent’s Accountants in the city. To me, it is one of the most satisfying ways of negotiating family law matters. Generally, we have been able to maintain a genuine working relationship between the parties who will be involved in their children’s future for many years to come.
We have maintained our involvement with Brisbane South Bank (BSB) a viable business networking group for the South Bank precinct. We enjoyed their many networking events and in particular, the “showcases” held each year where we were able to network with the 50 business owners who participate. It is a fun event and provides a chance to get to know the business owners ranging from large corporations to small business owners which include, Qpac, the Art Gallery, GOMA and the Convention Centre.

I continued my Notarial work throughout the year and assisted many clients with the completion and authorisation of overseas commercial documents.

I appreciate the efforts and support given to me by the professional and administrative staff that work with me and we enjoy a very harmonious and enjoyable office relationship.

We are grateful for the support of my clients throughout the year. We look forward to providing positive and beneficial outcomes for our clients in the New Year.

We extend our best wishes for the festive season and wish everyone a prosperous and happy New Year.

Article Source: Family Law Review

Top Ten Issues You Need To Know About Family Law Litigation

Follow along for the latest installment of our ‘TOP TEN ISSUES YOU NEED TO KNOW” series. This feature discusses the Top Ten Issues You Need To Know About Family Law Litigation.

In 1975 the Federal Government set up the Family Court to deal with matrimonial matters.  It now also deals with de facto and same-sex relationships.  Prior to 1975, the State Supreme Courts had jurisdiction in regard to issues resulting from a breakdown in a marriage.  De facto couples and same-sex couples had no representation in this Court.  Under the Matrimonial Causes Act, it was necessary to establish a fault to bring matters before the Court, such as cruelty, desertion, separation for a lengthy period of time, and other such matters.  The requirement to establish these grounds was abolished and parties can now have matters dealt with in the Family Court as soon as separation occurs in their relationship.  There is a requirement for a separation of 12 months to bring an Application for Divorce but that does not prevent applications in relation to property issues and children being filed with the Court immediately after a separation has occurred.

Disadvantages of Family Law litigation

1. There can be lengthy delays in having the matter dealt with by the Court. It is not unusual for a matter to take 15 months to 2 years for a final determination to be made by the Judge.  The parties can at any time reach an agreement on the issues before the Court and have orders issued by way of consent.
2. Family Law Litigation including Family Court proceedings can be costly. There are requirements for the filing of applications and affidavits and other documents and these documents must be properly drafted if the matter is to proceed through the Court.  The parties have separate representation.  The solicitors receive varying instructions which can create conflict in the conduct of the matter which draws out the process of reaching a speedy resolution.
3. Proceedings in the Family Court are emotionally draining for the parties. Friends and family can be drawn into the process creating relationship difficulties.  It is an adversarial process that does not assist in a conciliatory resolution of the issues before the Court.
4. The parties in Family Court litigation have no control over the process. Dates are set for the mentions and various hearings of matters before the Court.  If the parties are unable to resolve their matters then a judgment will be forced upon them at the conclusion of the matter by way of trial.  The judgment may not be to everyone’s satisfaction.  The parties are subject to examination, cross-examination, and re-examination during the trial process and it can be a harrowing experience for those involved.
5. The parties have no control over the running of the matter through the Court process and are required to comply with directions and orders made and for appearances on dates set by the Court.
6. Legal representation is not necessary for the running of a matter in the Family Court. Self-litigants however do not have the knowledge required to meet all the requirements that are imposed upon them for the proper conduct of their matter and the drafting of their Court documents.  It is not an easy process to follow and self-litigants may not have the ability to properly present their evidence to the Court nor to comply with the requirements for the drafting of the application and other Court documents.

 Advantages of Family Law litigation

1. Court orders made by the Court are enforceable and this provides some certainty to the resolution of financial issues and children’s issues arising from a breakdown in a relationship, leading to family law litigation. Court orders are enforced in the Court.
2. Where there is a real concern in regard to the parenting of the children an Independent Children’s Lawyer can be appointed by the Court to solely look after the children’s interests. An Independent Children’s Lawyer is funded by Legal Aid although the parties may be requested to contribute to a small degree to the costs of the children’s lawyer.  The children’s lawyer has the ability to obtain relevant information from doctors, hospitals, schools, and other sources.  As well a Family Report may be prepared at the request of the children’s lawyer.  The Court can also order a Family Report without the appointment of a children’s lawyer.  The Report Writer will then interview the parties with the children if that is appropriate and present a detailed report with recommendations for a resolution of parenting issues.  The Judge hearing the matter will make his or her own assessment of those recommendations.  The information obtained by the Independent Children’s Lawyer reduces the costs of the parties personally obtaining such documentation and information.
3. There is a requirement in relation to parenting matters for the parties to attend a mediation prior to the institution of proceedings in the Court unless there is some element of urgency in bringing this application. The Federal Government has set up Family Relationship Centres which provide this mediation service without cost to the parties.  This is a very valuable means of resolving parenting issues or if not reaching a resolution of minimising the matters which then go to the Court.
4. An application for divorce can be filed 12 months after the date of separation. The parties have 12 months after the order for divorce is made by the Court to resolve financial issues otherwise leave of the Court must be obtained.  It is a no-fault divorce application.

Article Source: Family Law Litigation

 

RESERVE BANK OF AUSTRALIA (RBA) RATE STILL AT AN INCREDIBLE HELD AT 0.10%

 

The world knows all too well about how your interest rates can dramatically change from one month to the next and if you get yourself in a good position, you lock that RBA interest rate in for a few years to protect yourself from being knocked out by a rise in the RBA interest rate (RBA cash rate).

For 3 years the RBA rate remained at 1.50%, which for some was great as no rise in an otherwise ever-changing world meant that homeowners could keep their properties. For others, the cost of living was still too high to save a deposit for a house. Then in mid-2019, we saw a drop of 0.25% bringing the rate down to 1.25% which for anyone struggling to pay their mortgage meant this was a big stress relief or for some of us, helped to apply for a home loan to be more achievable.

The rate continued on this downward trend dropping by 0.25% again and again which brings us to today at an incredible low of 0.10%. On top of that, the Government is currently offering $15,000 to First Home Owners for contracts entered into from the 1st of July 2018.

What does this mean for you? It means anyone who has been looking to buy a property, can now get a home loan with an extremely low-interest rate making it more affordable for the average income earner.

But do your research. Check out the different offers from the banks and get one that suits your needs. We suggest you do your calculations before applying for a loan. Get advice on your contract before signing it.

Does your property lie in a flood zone? There are so many possible questions with buying a property that you may not know what are the correct questions to ask.

Contact Aylward Game Solicitors for a 20minute free consultation or for $440 for up to 90minute consultation before you sign a contract.

Article Source: RBA Interest Rate

Who’s Your Daddy? Am I the child’s parent?

Who’s Your Daddy?

Am I the child’s parent?

Strange as it may seem, we do not see too many women through our door asking how they would know or be able to prove if they are a child’s legal and biological parent.  We do however experience the question raised quite often by men.

In our experience as Family Lawyers in Brisbane that men are approached by current or former partners to request they contribute financially to raise their child.  Some men wish to prove a lack of paternity to negate their obligations in this regard.

Other fathers will seek to prove the paternity of a child to establish a right to spend time with that child.  Many men in these situations come to us in a bid to understand their legal rights and the rights of a person seeking to prove paternity.

A mother can request a male she suspects to be the father of a child to undertake a simple DNA test from a certified laboratory for such testing to establish parentage.  If the father accepts it is often accepted that the mother pays for such a test.

Should the man suspected of being the father refuse to take a DNA test, then the mother will be required to make an application to the Family Court of Australia to seek a declaration of paternity.

A Court may order that a male whom it suspects could be the father of a child take a DNA test.

Enforcement of the order (forcing the male to undertake the test under threat of a penalty) is not possible, however, the fact that the male chose not to undertake a DNA test will be considered when deciding whether to make a declaration that the male is or is not the father of a particular child.  In such circumstances, the Court may make a declaration that the male is the father of the child and he may then be liable to pay child support.  The only way to prove otherwise is for the father to undertake DNA testing and apply to the Court for a declaration that he is not the father of the child. So a suspected father may chance his luck however it is likely that he will not escape his obligations and after further time and cost will be proven liable to support their child.

It should be noted that an application for a declaration of paternity does not attract an application fee.

For more information on your situation, please contact a Specialist Accredited Family Lawyer today at Family Law on 1800 217 217 or click here to book a consultation or see other options.

Contact us 

Article Source: Who Is Your Daddy 

FINANCIAL WINDFALL: A JOY OR TRAGEDY

 

Financial Windfall: A Joy or Tragedy

What to do if you win the lotto? How does the Family Court view it?

A windfall is either a sizable inheritance or a lotto win. In the eyes of the Family Court, an inheritance is treated differently to a lotto win.
The Family Court has great difficulty in distinguishing a lotto win by one party as a sole financial contribution by that party to the assets of the marriage and in most cases treats lotto wins as joint contributions. That is, that if during the period of a relationship be it a marriage or de facto relationship, one party receives a sizable lotto win and that win is then applied towards the improvements or acquisition of matrimonial assets, the Court would deem that both parties have equally contributed to both the acquisition and improvement to those assets.

In one case a wife and husband maintained sole financial estates. They owned property in their respective names solely and operated their own bank accounts. The wife in that relationship purchased a lotto ticket and won a substantial prize. She argued that the lotto win came from her finances which were totally separate from that of her husband.

The Court deemed that because the ticket was purchased during the course of the relationship that it was a joint contribution and they equally shared. The lotto win became a part of the assets pool and the normal principles for a division of the net matrimonial assets were applied on the basis that the lotto win was a joint contribution to that asset pool.

It may be different if the parties are living separate lives in that they have separated but there has not been a divorce in the marriage for example. In those cases, the Court may consider that as a lotto win was obtained outside the relationship that this win is deemed or could be deemed a sole contribution by the party who won the lotto prize.

The Family Court when considering the contributions by the parties to a relationship would take into account the respective value of the contributions made by the parties and that such contributions depend entirely on the facts of the case and the nature of a Final Order by the Court. The Court has a very wide discretionary power when considering such matters.

The contributions by the parties are assessed at the date of trial and not at the date of separation. If an agreement is reached between the parties prior to any litigation in the Court and prior to any trial then the value of the contributions would be the values on the date of any agreement entered into by the parties.

The Family Court when considering inheritances and the contributions attributed to such inheritances adopt in most cases a holistic approach to a division of the assets including any inheritance received.

The relevant decision in regard to this set out the principle, “however, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represents the equity in the particular circumstances of this particular relationship. The essential task is to assess the nature, form, and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.”

How does this affect Court decisions when considering inheritance and a division of the net matrimonial assets?

In regard to inheritances, a later receipt of that inheritance during the relationship is usually given more weight than if such inheritance was obtained earlier in the marriage or relationship and therefore deemed an earlier contribution to the net matrimonial assets pool.

In a number of decisions where the inheritance was received shortly prior to or after separation the entirety of that contribution was granted to the person who was in receipt of the inheritance and the inheritance was effectively quarantined from the net matrimonial asset pool. The Court considered in one case that it was preferable to treat the inheritance as a separate asset, “that is because the inheritance was received after the separation of the parties, and the wife made no contributions, direct or indirect financial or non – financial to, its acquisition, conservation or improvement. In those circumstances, however, viewed, it is considered, the significance of the inheritance alternately turns on its impact as a financial resource of the husband pursuant to s75(2) of the Family Law Act”. On appeal, the husband was successful in keeping his inheritance out of the net matrimonial pool.

The above examples are cases where the inheritance was received shortly prior to separation or after separation. The relevance of s75(2) of the Family Law Act is the Court’s consideration of the future financial position of the parties. The inheritance is considered in these circumstances as providing a case where the husband had a resource that could be invested and provide a safe and secure future for him. Because of this the wife did not have that benefit and was given a slightly higher interest in the net matrimonial assets apart from the inheritance.

The Hudson Institute

I’m a member of a financial advising group, The Hudson Institute. I came across a recent article in the newsletter written by one of their financial advisers, Michal Park which deals with “Windfall” it is an interesting article and for this reason, I make it available to download the article in its full context.

It is interesting to note in this article, “there are some legendary stories of lotto winners squandering their winnings and ending up in a worst financial state (a common statistic is more than 75% of a windfall are squandered).”

The article then goes on to provide some handy hints as to what a person should do if they do receive a windfall and provides some advice on the investment of the proceeds of that Financial Windfall.

I have dealt with many cases where parties have squandered their winning or their inheritance. Many are left in a worse financial position than the position they were in prior to the receipt of the windfall. The windfall has led to heartbreak and tragedy, the relationship has broken down and the parties are left fighting over the assets that remain. It is heartbreaking to deal with such cases when in fact the parties if they had wisely invested their winnings or inheritances, could have lived a very comfortable life for the remainder of their relationship.

I have also dealt with cases where the parties have wisely invested the winnings or inheritances but still could not maintain a relationship with each other.

Article Source: FINANCIAL WINDFALL

Judge allows divorce papers to be served via Facebook

Facebook has been a place for people to promote their new single status for years, but now it also has the power to help people legally reclaim their single life. In a landmark ruling, a New York City judge had declared that Facebook messages are an acceptable way to serve divorce papers, according to the New York Daily Post.

Manhattan Supreme Court Justice Matthew Cooper has given permission for a nurse named Ellanora Baidoo to serve her elusive husband Victor Sena Blood-Dzraku through a private message on Facebook.

Her lawyer Andrew Spinnell will message Mr. Blood-Dzraku, through her account, once a week for three consecutive weeks or until Mr. Blood-Dzraku acknowledges it.

While the first Facebook message was sent out last week, Mr. Blood-Drzaku has yet to respond.

Mr. Spinnell said the new law was necessary and noted that it had been incredibly difficult to try to serve Mr. Blood-Szraku by traditional methods.

“We tried everything, including hiring a private detective — and nothing,” Mr. Spinnell said.

Mr. Blood-Dzraku who has no fixed address or place of employment occasionally keeps in touch with his 26-year-old wife on the phone and through Facebook, the ruling said according to New York Daily News.

The post office has no forwarding address for Mr. Blood-Dzraku, who refused to make himself available to be served divorce papers.

‘There is no billing address linked to his prepaid cell phone, and the Department of Motor Vehicles has no record of him,’ the ruling added.

Mr. Spinnell says the couple married in a civil ceremony in 2009 but noted that the relationship began to unravel when the defendant reneged on his promise to a traditional Ghanaian wedding ceremony as well.

As a result, the couple from Ghana never consummated their marriage and the husband and wife never lived together.

Newsbreak – April 7

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So does any of this apply to Australia?

The answer is YES! It could also happen in Australia.

Normally documents are served in two ways in Australia that are acceptable to the Court.  The first means of service is personal service which cannot be done personally by the applicant.  A Process Server is engaged (or a friend or relative) to serve the documents.  Normally a photo is provided so that the respondent can be identified.  Car registration details and other information which would assist in identifying the respondent are normally provided.  The Process Server is required to ask questions to properly identify the person served.  The Process Server is then required to complete an affidavit of service setting out all relevant information in regard to the service of the documents in which the affidavit is filed with the Court.

The second acceptable means of service is by post.  Included with the documents to be served is a document titled “Acknowledgement of Service” which the respondent is required to sign and return.  If this document is signed and returned then the applicant is required to identify the signature of the person served in an affidavit titled “Proof of Signature” and this is filed with an affidavit of service setting out the details of the service of the documents by post.

If the respondent fails to complete the Acknowledgement of Service then personal service is required.

If however the whereabouts of the respondent is not known an application can be made for substituted service nominating a suitable means of service which would enable the respondent to be made aware of the proceedings before the Court.

An application can also be made for the whereabouts of the respondent to be provided by the Department of Social Security if the respondent is known to be receiving government benefits.

Before an application is made for substituted service the Court must be satisfied that all appropriate means to locate the respondent have been exhausted and the whereabouts are unable to be established.  This may mean inquiries with relatives, friends, the last place of employment, and so forth.

If the Court is satisfied the respondent will gain knowledge of the proceedings by substituted service then service may be ordered by Facebook, email, or posted to a known close relative or some other acceptable means.

In response to the article in question, yes the documents may be served by Facebook if the Court deems that to be an acceptable means of service.

Contact us 

Article Source: Divorce Papers 

A DISCUSSION ABOUT CHILD CUSTODY

 

Did you know the term ‘Child Custody’ is no longer referred to in the Family Law Legislation?

It was the term used previously by the Family Court. It was considered that Child Custody donated property rights to children that are that one party owned the children whilst the other party had the rights to have the children visit from time to time.

It was considered that the term should be changed to the children living with one party and spending time with the other party. These are the terms that are now used by the Court when making parenting orders. This came into effect in 2006.

Decisions in cases involving disputes about where the children should live and how much time they should spend with the other parent or other significant adults in their lives are now made pursuant to the Family Law Act.

The Attorney General when making changes to the Family Law Act summarised the principles as follows:

“The law will take the view that parenting is a responsibility which should be shared and, in most cases, parents will need to consult and agree on major issues affecting their children.”

“Where both parents share responsibility, consideration will also be given to the children spending equal or at least substantial time with both parents providing that this is practical and not contrary to the best interests of the child.”

It was the intent of the legislation to changing the culture around family separation.

The changes to the legislation were designed to support and promote shared parenting and encourage people to reach an agreement about parenting of children after separation. Changes made were to encourage parents to take responsibility for resolving disputes themselves and not in an adversarial manner.

Has the Government’s wishes in this regard been achieved? I think not.

The Federal Government also introduced family relationships centres being centres where parties are required to mediate matters relating to the parenting of their children. A number of family relationship centres were established in the Brisbane area. It is a requirement now that where parenting issues cannot be determined that the parties must first attend a mediation to try and resolve the parenting issues amicably and the family relationship centres were established for this purpose. Unless there are urgent matters requiring urgent attention or where the welfare of the children is in jeopardy then the Courts may hear applications in regard to the parenting of children without the parties attending on mediation. The parties can attend mediation at other centres such as Relationships Australia if they so wish. The persons conducting the mediation must issue a section 601I certificate confirming that mediation had been appointed and this certificate must be filed with the Court with any application by a party concerning his/her children. A Court will not hear a child custody application regarding parenting without such a certificate being filled with the Court.

These principles relate to all children under the age of 18 years that is prior to children becoming adults, whether the parties are married or unmarried.

The Family Law Act and therefore the Federal Circuit Court (Family Court) applies in all states of Australia except Western Australia. Western Australia did not refer its legislative powers in regard to family law to the Federal Parliament and now operates its own Court system in relation to such matters.

When considering parenting issues the overriding principal the Court must apply is that the best interests of the children are the paramount consideration. That is the Court is required to protect the rights of children and promote their welfare. The principal overrides the wishes and desires of either the mother or the father. The principal was established in an English decision. ‘When all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course followed will be that which is most in the interests of the child’s welfare.

INTERESTS OF CHILDREN

Section 60B of the Family Law Act states that the best interests of children are met by;

1. ‘ensuring that children have the benefit of both of their parents, having a meaningful involvement in their lives, to the extent consistent with the best interests of the child’; and
2. protecting the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect, or family violence; and
3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. ensuring that parents fulfill their duties and meet their responsibilities, concerning the care, welfare, and development of their children.

Section 60B(2) of the Family Law Act states that except when it is or would be contrary to the child’s best interest;

1. ‘children have a right to know and be cared for by both their parents; and
2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents or other relatives);
3. parents jointly share duties and responsibilities concerning the care, welfare, and development of their children;
4. parents should agree about the future parents of their children; and
5. children have a right to enjoy their culture.’

In regard to the children having a right to enjoy their culture the rights of Aboriginal and Torres Straight Island children to access, explore and appreciate their particular culture is clearly, and distinctly, set out in the principles of the Family Law Act.

One wonders if this principal would also apply to other cultures such as the Muslim, Jewish, Hindu, or other such cultures in which the children have been raised or in which the parents have an interest. As stated it clearly applies to Aboriginal or Torres Straight Island children. I am unaware of these principals being applied in relation to other cultures.

Section 64B(2) of the Family Law Act sets out particulars of parenting Orders that the Court can make. The section sets out the following provisions;

1. the persons with whom a child should live;
2. the time a child is to spend with another person;
3. the allocation of parental responsibility for a child;
4. the form of consultations to be had between persons who share responsibility; and
5. the communication a child is to have with another person.

There is an underlying presumption in the family law legislation that the parents of a child have a shared parental responsibility that is that parents share a shared parental responsibility in making decisions about major long-term issues affecting their children. A parent cannot unilaterally make a decision in regard to such long-term issues without the consent and consultation with the other parent. A major long-term issue in regard to a child is something that could be related to the care, welfare, and development of the child and could include but would not be limited to the child:

• name, health, and education (both current and future);
• religious and cultural upbringing; and
• changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either parent.

DAY TO DAY PARENTING

Day-to-day parenting of a child does not normally fall within the definition of shared parental responsibility. Parents are not obliged to consult each other on issues that are not major long-term issues. This means that the parent with whom the child is spending time will usually not need to consult with the other parent about the day-to-day decisions for that child in such circumstances in regard to the meals to be provided to the child, what the child wears, or what activities the child will be involved in, whilst residing with that parent.

However, unilaterally enrolling a child in a sporting or other activity which would affect the other parent’s time with the child may be considered a shared parental responsibility in which case the consent of the other parent should first be obtained.

If a court decides that the parents have shared parental responsibility for their child, the Court must consider whether the child spending equal time with the parents is in the child’s best interests and reasonable practicable and if so the Court must then consider making an Order for the child to spend equal time with their parents. If equal time is not practicable and not in the child’s best interests, the Court must then consider whether the child should spend substantial and significant time with the other parent.

However, the overriding principal of what’s in the child’s best interests must always apply when making decisions in regard to shared parental responsibility and the parties spending equal time with the child or significant time with the child.

Clearly, the Family Law Legislation covers every aspect of a child’s life and the parenting of that child.

The majority of matters proceeding to a trial in the Family Court relate to children’s issues, the requirements for parents to seek counseling or mediation prior to bringing any application in the Court has not deterred to any great degree, the number of applications which are made in the Court relating to parenting of their children. When considering the best interest of a child the Family Law Act set’s out other considerations.

These are:

• any views expressed by the child and any factors (such as the child maturity level or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
• the nature of the relationship of the child with:
• each of the child’s parents; and
• other persons (including any grandparent or other relative of the child);
• 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;
• the likely effect on any child in the child’s circumstances including the likely effect of any separation from;
• either of his or her parents; or
• any other child or person (including any grandparent or relative of the child) with whom he or she has been living;
• the difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense with substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of:
• each of the child’s parents;
• any other person (including any grandparent or other relative of the child); and
• to provide for the needs of the child, including emotional and intellectual needs;
• the maturity, sex, lifestyle, and background (including lifestyle, culture, and traditions) of the child and either of the child’s parents and any other characteristics of the child the Court thinks are relevant;
• if the child is an aboriginal child or Torres strait island child;
• the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents;
• any family violence involving the child or a member of the child’s family;
• any family violence order that applies to the child or the member of the child’s family if;
• the Order is a Final Order; or
• the making of the Order was contested by a person;
• whether it would be preferable to make the Orders that would least likely to lead to the institution of further proceedings in relation to the child; and
• Any other factor or circumstances that the Court thinks is relevant.

The Court will also look at a parent’s involvement in the past parenting of the child and whether that parent has shown interest in the parenting and development of the child.

It is interesting to note that the legislation does consider other persons apart from the parents when making Orders in regard to children. That is persons that have a significant interest in a child’s life such as grandparents or relatives also have rights to that child and the Courts will consider any application by such persons to continue with their parenting or involvement in a child’s life. In most cases, persons who have a significant interest in a child apart from the parents are normally subordinate to the parents’ rights and in most cases, any application brought by such persons the Courts will consider their rights to a continuing relationship to the child and how that effects the primary parent’s roles in regard to such parenting.

Article Source: CHILD CUSTODY