Family Law: Parenting and Children Guide
DISCLAIMER: This general guide is not legal advice and is general information only. You should get legal advice on your circumstances.
Family Law Parenting and Children Guide
This guide contains information to assist you to obtain the best arrangements for your children.
It is designed to explain the legal process so you can understand the law surrounding parenting arrangements. It is not a definitive and all-encompassing how-to guide, as the law is far too complex to explain in 20 odd pages.
Obviously this guide cannot replace legal advice. So, we always very strongly recommend legal advice to get the best for you and your family.
Please do not hesitate to contact Millwater Tyrrell Law and we will be happy to discuss your situation with you.
That being said, we hope this information sheds some light on the darkness of the legal labyrinth.
Sometimes Urgent Action is required!
There is possibly nothing more gut wrenching than serious concern for your children or their safety. If there is risk of harm to your children you should act immediately. Depending on the level of risk and the urgency you should contact police or other authorities either before or after seeking legal advice.
If there is serious imminent risk of harm to your children, contact emergency authorities to seek their view on protecting your child from harm. Once your children are safe you should then consider whether urgent Court application is necessary.
We suggest you consider urgent Court application if:-
You have not seen your children for a long time: take action as soon as possible to ensure their relationship with you is not damaged.
Your children are removed from your care.
There is family violence or abuse: It is recommended you also seek advice about obtaining a Protection Order.
There are drugs or serious alcohol consumption concerns.
Other urgent circumstances, such as risk of a child being taken from Australia or being neglected.
In any of the above circumstances an urgent Court Application may be appropriate. Please see the section below about Court Applications.
The starting point: Family Law legislation
The Family Law Act 1974 is the legislation that sets out how the Court decides parenting matters.
The Family Law Act can be easily located on the internet (HERE) and we encourage all parents to read it in conjunction with this guide. The sections relevant to children are sections 60 to section 70.
The basic and all-encompassing rule for parenting and children’s matters is – do what is in the best interests of your children. This is common sense really, but it is also the test that the Court applies to work out parenting arrangements.
The most important factors regarding parenting are:-
1. When deciding parenting arrangements, the best interests of the children is paramount and is the most important factor.
2. That you should act in the children’s best interests by considering the following factors:-
a. what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has care of the children
b. any views expressed by the children;
c. the developmental, psychological, emotional and cultural needs of the children;
d. the capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs;
e. the benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to the children, where it is safe to do so;
f. the children’s right to enjoy the children’s Aboriginal or Torres Strait Islander culture;
g. anything else that is relevant to the particular circumstances of the children.
The Court will always prioritise protecting children from harm above all else. If there is a risk of harm to a child, the Court will act in a decisive and urgent way to prevent harm occurring, and then act in a cautious way to prevent future harm from occurring.
An example:-
If a Court on the first Court date hears that a child has been exposed to relatively serious family violence with the parent they are living with, and there appears to be enough evidence that the Court can be reasonably sure the family violence has occurred, the Court would likely:-
1. Immediately place the child with the other parent or another person where they are safe;
2. Make independent or further investigations into the family violence and risk but ordering a Family Report;
3. Perhaps make any time the child spends with the perpetrator of the violence be supervised (or no time at all);
4. Only recommence the child spending unsupervised time with that parent once any risk of harm to the child is resolved.
The Court may put in place safeguards to prevent the risk of harm, but still allow children to spend time with their parents. For example, if there is family violence occurring at changeover between the parents, the Court may require the use of a contact centre for changeovers, or require changeovers to be at a school where the parents do not come in contact with each other.
It is not always simple to work out what is overall in the best interests of children. Usually there are many different competing factors.
For example:-
The children are aged 3 and 8 years old and their parents live approximately 1 hour drive apart. The 8 year old attends school, and the 3 year old attends daycare. The parties agree that the 3 year old is too young for alternate weeks equal shared care, and while week on week off may be acceptable for the 8 year old, it is important that they not be separated from each other. The travelling distance between households is also a factor against equal shared care. In this situation the Court may seek to adopt an arrangement that keeps the children together, with them both primarily living with one parent close to their school and daycare, and spending significant weekday and weekend time with the other parent.
There are multitudes of different scenarios that can arise and therefore seeking legal advice on the best interests of children is strongly advised.
In many cases parents will have competing views on what is in the best interests of their children. For an independent perspective the Court in most cases will obtain a family report on the best interests of children (please see the Family Reports section below).
Decision making for children
Decision making for children can be either joint by both parents, or sole by one parent.
Decision making Orders or agreement is for major long-term issues for the children.
The common major long term issues to be decided include:-
Education or extracurricular activities;
Medical treatment;
Religious beliefs; and
Living arrangements, including in what location the children live.
Day to day decisions such as giving a child panadol for a fever is not a major long term issue.
Examples of long term issues are: what school a child will attend, or what type of treatment they will undergo for a serious illness, or what faith they will adopt etc.
Prior to any Court Order being in existence, both parents make decisions jointly or separately. This can be slightly confusing, but they both have the power to make decisions on major long term issues. When parents are united and acting together this does not become a problem. If parents disagree on major long term issues then the Court may decide how those decisions are made, and who will make them.
If both parents are acting according to the best interests of the children then an Order that the parents have joint decision making is appropriate.
Joint decision making means that both parents are involved, and make a genuine effort, to make joint decisions regarding major long-term issues for their children.
The Court may decide that it is in the best interests of the children that there be sole decision making for major long-term issues by one parent.
Sole decision making means one parent making major long-term decisions without requiring the consent of the other parent.
Sole decision making may be put in place where there is:-
Family violence;
Child abuse by a parent;
Failure of communication between parents;
Ongoing serious conflict between parents;
Significant substance abuse by a parent; or
A parent being incapable of making child focused decisions.
Depending on the severity of the above factors the Court may say that one parent will have sole responsibility to make the final decision, but must first consult the other parent and reasonably consider their decision.
In some more serious cases of family violence or otherwise, one parent will make the decisions without any consultation with the other parent.
Whether there should be equal or sole decision making is one of the issues that will be discussed in a Family Report obtained by the Court.
The power to change where a child goes to school for example will also affect where they may live, and how often they may practically be able to spend with either of their parents. It is very important to make sure the decision on decision making is appropriate for your child. Please do not hesitate to contact Millwater Tyrrell Law for a more detailed discussion on decision making for your child.
How does a Court work out what will happen with my children?
The Court will decide who the children live with, what time they spend with the other parent, who makes parenting decisions, and any other parenting issues based on considering the best interests of the children factors listed above in this letter.
The Court has wide discretion to consider all factors when determining who a child will live with, and what time they will spend with other parent(s)/persons.
The outcomes can range from an equal time arrangement to supervised or no time where the circumstances dictate.
When determining the best interests of the children the Court will also take into consideration the practical effect of the proposed parenting arrangement.
For example, if one parent lives 1 ½ hours from the child’s school it is very unlikely that an equal time arrangement is workable as the child would be spending 3 hours each day travelling to get to school in every second week.
As there are many different options and outcomes according to the needs of the child and the practical realities of the situation it is important to give us as much information as possible so we can provide an accurate opinion based on your circumstances.
Some of the factors for parenting arrangements are:
1. Whether there has been any family violence or other risk factors
2. The age and developmental needs of the child (whether short or longer visits are appropriate)
3. Whether the child has a primary attachment to either parent
4. The child’s views
5. The level of communication between the parties
6. Any conflict between the parents
7. Whether each parent is available and able support the child
8. The distance between the parent’s homes
9. Whether there are siblings (including step siblings)
10. The frequency that the child moves between households
11. Any particular needs of the child; and
12. Any other circumstances relevant to the child or the parents.
As we have said earlier, most important issues relevant to your child will be taken into account when working out what arrangements are best for them.
To further discuss what arrangements are best for your child or to understand the process do not hesitate to contact our office.
At what age can my children decide who they live with?
The short answer is: there is no such age.
Basically as soon as a child is old enough to express their own views a Court will take their views into account when making a decision to some degree.
The older and wiser the children become, the more the Court will listen to their views. How much a Court takes into account what your child says, depends on what they actually say.
If your child expresses a mature, logical, reasonable view, then it will be something that the Court listens to closely. If the view is something along the lines of Dad has the best Xbox games, then probably not so much.
For example:
When asked about his parents, he said, “Dad and I get along great. He takes me to the footy and we play with LEGO. He helps me with the hard parts of my homework and explains the bits I don’t understand. Mum likes to go to the movies with me. She sometimes gets cranky when I’m getting ready in the morning or when I don’t clean up. She yells sometimes, mostly because things are messy.”
In the above example it appears the child has a good relationship with both parents, Dad takes the lead on educational issues, and Mum takes the lead on keeping them on task. These types of views from a child can help a Court decide the living arrangements for children.
If you go to Court, your child may be interviewed by a family consultant and their views then told to the Court in a Family Report. It is very rare that a child will actually appear in a Court to give evidence.
Most parents have some idea on their children’s views on who they want to live with and when they want to see their parents.
It is very important to know that it can be damaging to children to question them on who they want to live with. Questioning children on who they want to live with can in many circumstances make them feel like the decision maker, and place huge amounts of stress on them. The Court is usually quite critical of parents that have deeply questioned children on their preferences. “Coaching” children is most definitely not acceptable and usually will backfire on the coaching parent.
This being said, every parent wants their child to be happy, and their views are important. So, when deciding what is best for your child and what arrangements to be put in place, listen to them, think about how much sense their views make, and then come to a decision yourself about what is in their best interests as a responsible parent.
What is a Family Report?
A Family report is a document that typically covers the background, issues, positions of the parties, views of the child, and gives recommendations as to what arrangements would be in the best interests of the children.
The family report is prepared by a family consultant, who may be appointed by the Court or privately funded by the parties.
The family consultant reads the relevant documents (including Court documents) and then interviews all the relevant parties including the children.
Depending on the age and relationship of the children with their parents, the family consultant will decide whether the children are interviewed and how that occurs, e.g. whether the children’s interactions are viewed with both of their parents.
The recommendations of the family report are highly considered by the Judge, particularly on an interim basis, as they reflect an independent opinion of what is in the best interests of the children.
Usually the recommendations will cover who the children live with and the time to be spent with the other parent, equal/ sole parental responsibility, arrangements for changeover, and any safeguards that might be necessary, e.g. drug testing, psychiatric evaluations, parenting courses.
If there are particular issues of dispute to be determined by the Court (e.g. which school a child is to attend) it is important that the family consultant be made aware of the issues so that they may express an opinion.
It is important to know that a family report is a highly confidential document and releasing it to third parties is an offence.
Do Children get a lawyer at Court?
In many cases both parents have lawyers, and some cases the children are appointed a lawyer by the Court as well.
Independent Child Lawyers, or ICLs, are appointed be the Court and generally are funded by legal aid.
Their job is to independently make enquiries and then make submissions to the Court on the best interests of the child.
Usually an ICL will be appointed if the Court is concerned about:-
risk of harm to a child
the welfare of a child
there is significant ongoing conflict
serious substance abuse
mental health concerns
An Independent Child Lawyer is required to meet with the child to obtain their views prior to a Final Parenting Order being made.
The Independent Child Lawyer must discuss the proposed parenting arrangements unless the child is under 5 years old, the child does not wish to meet with the ICL, or other exceptional circumstances including if it would expose the child to a risk of physical or psychological harm that cannot be safely managed or would have a significant adverse effect on the child.
In many cases an ICL will arrange a family report.
Tasks of the ICL may include:-
subpoenas to obtain information
arranging a family report
drug testing
psychiatric evaluations
An ICL becoming involved in a case may cause a significant amount of delay (2-3months) for legal aid to appoint them and the ICL to then make enquiries to be able to present their opinion to the Court.
What is a Parenting Plan or Consent Orders?
Lawyers love written documents, but it turns out writing down the arrangements for your children can help with providing them with a stable living environment to help with their development.
Not only that, if parenting arrangements are documented it will give the parents certainty of when they will see their children.
It can also be very important for some arrangements to be legally binding, for example preventing a child from being taken from Australia.
The two ways to document parenting arrangements by agreement are:-
A Parenting Plan; or
Court Consent Orders.
The Family Law Act says a Parenting Plan or Consent Orders may deal with one or more issues including (but not limited to) the following:
a) Who a child lives with
b) The time a child spends with another person or other persons (including holidays and special days)
c) Parental responsibility for a child
d) Where the child is to live (including non–relocation clauses)
e) Changeover and transport arrangements for visits
f) Choice of school or extracurricular activities
g) How the parents communicate about decisions to be made for the child
h) The communication a child is to have with another person or other persons
i) Child support/maintenance of a child (only for Parenting Plans, not Court Orders)
j) Authorisation to obtain documents for the child from treatment or educational providers
k) The process for resolving disputes
l) The process for updating arrangements to take account of the changing needs or circumstances of the child of the parties
m) Airport watchlist alerts (to prevent a child being removed from Australia)
n) Restraining clauses or injunctions preventing contact or communication or other behaviours
o) Any other matter to do with the care, welfare or development of the child.
It is important to say that the above list is just a short general list of what can be put into a Parenting Plan or Consent Orders. Depending on the needs of your child, almost any arrangement in the best interests of the child can be included if it is of enough importance.
What is the difference between a Parenting Plan vs Consent Orders?
Parenting Plans:-
are not legally binding
you cannot enforce a term of a parenting agreement
they do not require a Court to agree for them to be changed
parents cannot be punished by the Court for not following a Parenting Plan
however, if either parent applies to the Court on a parenting dispute, the Court will consider the terms of the Parenting Plan. Therefore a Parenting Plan has some legal value even if it is not binding.
Court Orders:-
are legally binding
the terms of a Court Order can be enforced
there can be penalties imposed by the Court for non- compliance
they are final until the child turns 18 (unless varied by a Court)
Depending on your particular circumstances, a binding Consent Order, or non-binding Parenting Plan may be better for you and your children.
If you need Orders that must have legal force, for example an Airport Watchlist Order to prevent children leaving Australia, then you need Consent Orders.
If you need a binding non- relocation Order to say your children will stay living in their current location, then you need Consent Orders.
If you are certain that you want the parenting arrangements to continue definitely into the future, for example equal time has been agreed and you are certain it is best for your children, then you need Consent Orders.
Generally if you need something binding, and are 100% happy with the arrangements, lock it in by Consent Orders.
Court Orders about the arrangements for a child are final. An Order may only be changed if the parties agree; or if there is a significant change in circumstances and it is in the best interests of the child.
Therefore, before locking in an Order you should consider whether you will always be content with the arrangements in the Order, as the order may not be able to be changed in the future.
If you have young children it is important to draft your Orders in a way to suit their needs as they age. For example, the time they spend with the parent they don’t live with may extend or change over time. Future schooling arrangements and other age progression needs should be considered.
Review clauses are sometimes included in Court Orders, however in our view the current law and approach of the Court to review clauses is that they may not be enforceable, so be careful before locking in Orders.
If you are not sure about making agreed arrangements final and want to see how they go, or want flexibility to change the arrangements, don’t lock them in, and do a Parenting Plan.
If the children are young, or you expect changes in circumstances, and want to see what happens before a final agreement, then a Parenting Plan is your best option.
If an Order is in place and the parties then sign a later Parenting Plan it will override the previous Order.
We would be happy to further discuss whether Orders or a Parenting Plan will be appropriate in your situation.
Mediation
Coming to an agreement for the arrangements for your children will in most cases be better for them by sparing them from the conflict of Court proceedings.
Mediation is a process where a qualified mediator assists the parties to discuss issues and helps them to come to an agreement.
Parents can be face to face or kept separate during mediation depending on the situation and the desire of the parents.
Prior to applying to a Court for arrangements for a child it is a requirement that the parties attend mediation before applying to the Court unless an exception applies.
Generally one of the parties contacts the mediator and the mediator will then invite both parties to participate in an intake, and then the mediation itself.
There are a number of government funded mediation centres – eg. Relationships Australia or Family Relationship Centre. Additionally there are private mediators who may be lawyers or Barristers. Fees for lawyer mediators are usually significantly higher than the government funded centres, however the wait time is also shorter.
When the parties have completed a mediation, or either party refuses to attend, a s60I certificate will be provided which informs the Court that mediation has happened or was attempted. It is usually a requirement to file a s60I certificate with a Court application on parenting matters.
There are exceptions where mediation and the s60I certificate is not necessary including family violence, abuse, urgency, breach of Orders or a party’s inability to mediate.
It is important to seek advice and properly decide whether to participate in mediation. Refusing to participate in mediation will sometimes result in the mediator issuing a certificate that a party refused to participate. A refusal type certificate can mean that a Court may ask that person to pay some or all of the other person’s legal fees at Court.
If you are considering making a Court application or have been invited to mediation we strongly suggest legal advice as there can be serious costs and other consequences if proper procedure is not followed.
Requirement for a Notice to Commence Legal Proceedings
As well as attending mediation, if you wish to commence legal proceedings you must first send the other party a Notice of Intention to Commence Legal Proceedings.
A Notice of Intention to Commence Legal Proceedings is a detailed document that sets out:-
1. Background information and facts.
2. The Issues in dispute.
3. A genuine offer of settlement/parenting proposal.
4. The Orders that would be sought if a Court application was to be made.
5. An invitation to attend mediation and copies of Court required documents.
The Notice must give the other party 14 days to respond, or 7 days in circumstances of urgency.
If you receive a Notice of Intention to Commence Legal Proceedings it is important to respond within 14 days, as if you do not the other party may simply commence legal proceedings without any further notice to you.
If a Notice of Intention to Commence Legal Proceedings is not sent prior to applying to the Court, or if you do not respond to a Notice, the Court may make adverse legal costs Orders against you.
Urgent Proceedings:
Usually parties must attend mediation prior to applying to a Court for parenting Orders. However, this requirement does not apply for urgent proceedings or cases involving child abuse or family violence, or other serious risk to the child.
The Court will only accept an urgent application without a mediation certificate (s60I) if an Affidavit explaining the need for the urgent application is filed with the Court documents.
Some of the reasons to start urgent Court proceedings:-
Family violence or child abuse
An imminent risk of family violence or child abuse
Risk to the child as a result of alcohol or drug dependence/ consumption
Actual or risk to the child of serious neglect
A parent intends to relocate a child without consent;
Risk that a child will be taken out of Australia
A child has been removed from their primary carer causing signification impact on the child
Any other reason that is genuinely urgent and significant to the child.
In an urgent application it may be usual to seek Orders including:-
Making urgent arrangements for who the children will live with
Safeguards to protect a child from risk of harm
Seeking recovery of children
Restraining a person from contacting or approaching another party
Airport watchlists with immigration to prevent children being taken from Australia.
If a child is removed from their primary carer on a long term basis an urgent Recovery Order should be applied for as soon as possible to maximise the chances of recovery success.
It is important to note that it is a criminal offence to take children out of Australia without the consent of both parents. Not everyone knows this and once they are gone it can be very hard to return them to Australia, regardless of criminal offence or not.
Sometimes one parent will hold the passports for the children, which can give some degree of safety that they will not be removed. There still remains the possibility of passports being obtained illegally and the children being removed without the knowledge of the other parent.
The safest way to protect from children being removed from Australia is obtaining an airport watchlist Order. This is an Order that is passed on to the Federal Police and Immigration which will prevent the children passing through immigration.
It is possible to complete and lodge a form with the Australian Federal Police to put children on the Airport Watchlist immediately once you have filed your Court documents and while you wait for your Court date. By doing this the children cannot be taken from the country even before the Court has heard the Application.
We strongly recommend you seek our advice before making urgent application to the Court.
THE COURT PROCESS:
Obviously we cannot give you a complete how to guide for the Court process. However, we have put together some of the usual or basic steps of a parenting matter through the Court.
From start to finish going through Court all the way to a Trial can take about 12-18 months. It can be much shorter than that, if the parties agree.
As soon as the parties agree, the Court can be informed, and if the Court thinks the parenting arrangements are in the best interests of the child, the Court will make Final Orders.
It is often said that the best family lawyers are able to keep their clients out of Court by reaching reasonable agreements. The same could be said that the best parents will keep their children out of Court where possible. However, it does take two to tango, so to speak.
Remember that as soon as agreement is reached the Court can end the process by making final Orders. That being said, there are a number of steps involved in the Court process, the below is intended to give a brief description of each stage.
Court documents:
The necessary documents to start parenting Court proceedings are:-
Initiating Application – detailing what arrangement you want the Court to make for your children
Affidavits- a detailed statement of the relevant facts by you or other witness
Notice of Risk – this details whether there is a risk to the child and lists the parts of your Affidavit that describes the risk.
Genuine Steps Certificate – detailing/confirming you have made attempts to resolve parenting arrangements before applying to the Court.
The necessary documents to respond to Court proceedings are:-
Response- detailing what arrangements you want the Court to make for your children
Affidavits- a detailed statement of the relevant facts by you or other witnesses. This usually also responds to the facts in the Affidavits of the other party
Notice of Risk - this details whether there is a risk to the child and lists the parts of your Affidavit that describes the risk.
Genuine Steps Certificate – detailing/confirming you have made attempts to resolve parenting arrangements before applying to the Court.
How you draft your Court documents in the family Court system is important. The Court will only accept facts if they are contained in your Affidavits. Therefore everything you think is relevant to the best interests of your children needs to be in your Affidavits or the Court will likely disregard it.
If you have documents that prove what you say, either attach them to your Affidavit or have them ready to hand up to the Court. Having independent evidence will greatly increase your chances at Court. For example, if your child is excelling at school while in your care, produce their school records.
We would be happy to help you draft your Affidavits and advise you on what arrangements to seek, so please do not hesitate to contact us with any questions.
Service of documents and time to respond:
Once you file your Court documents you must serve them on the other parties as soon as possible.
You then need to file an Affidavit of service at the Court that gives the details of how, when, etc they were served.
In most cases lawyers will engage a commercial agent to serve the documents as this is relatively quick and cost efficient, the agent will also prepare the Affidavit of Service.
If you cannot locate the other party you should ask for a location Order (usually asking a Government agency to reveal the person’s address) or substituted service Order (asking to serve the other party by post, email, social media, or another method).
If you are applying for a location Order or a substituted service Order you need to show the Court you have taken all reasonable steps to try to locate and serve the person.
Where there is any suggestion of family violence we strongly recommend having a commercial agent make all enquiries on your behalf and to serve the documents. The various enquiries to serve someone and information gathering could possibly be mistaken for stalking or unwanted contact in some cases, so for this reason consider using a commercial agent.
Time to respond to Court documents
You have 28 days to respond to a Court application from the date the documents were served on you.
If you do not respond in the 28 days you should do so ASAP after that date. It is better to file response documents somewhat late rather than turn up to Court without filing documents.
If you do not comply with filing times, or do not file Court documents, the Court will likely adjourn the Court case, not take into account what you say, and may consider making you pay some of the legal costs of the other party.
Subpoenas:
Just because you say it’s true, doesn’t mean it is true. The Court relies on evidence, and producing documents to prove what you say can be crucial.
Sometimes the only way to get your hands on important documents is to issue a Subpoena.
After Court proceedings have started both parties may issue subpoenas to obtain documents and evidence.
Some useful subpoenas for records about children are:-
Education/ schooling records (including attendance records, counselling etc)
Medical/ health care provider records (including counselling notes or reports)
Department of Child safety records
Police records of all parties
Tenancy records
Telephone records
There is a limit of five (5) subpoenas for each party unless extended by the Court.
You should only subpoena information that is directly relevant to issues for the Court to decide. If you subpoena irrelevant or inappropriate places or people there could be a chance of adverse legal cost consequences.
To make sure documents are available for your Court date it is best to issue subpoenas early. Subpoenas must be served at least 10 days before the documents are required to be provided to the Court.
A subpoena is firstly served on the person/entity that you seek the information from. It must also be served on all parties to the case, so they know it has been issued.
You can object to your own documents being produced to the Court or to the other party. There is also a procedure specifically to view your medical records before the other party and the Court. Objecting to subpoenas to quite complicated and outside the scope of this guide, so if you need to object to a subpoena we would be happy to give you specific advice.
When a person/entity receives a subpoena they then send the requested documents to the Court. The Court then holds the documents until the parties file a Notice to Inspect, the Court will usually then approve the documents to be inspected at the Court.
The copying of subpoena documents must be specifically authorised by the Court.
First Court date and Interim Hearings:
The first thing to know is that the Court will not make a final decision for the arrangements for your children on your first Court date unless you and the other party reach agreement.
At the first Court date the Judge will most times ask questions to get a brief understanding of the issues and then will consider making Interim (temporary) Orders for the child if agreed by the parties.
If the parties do not agree on Interim Orders, the Court will give a further Court date for an Interim Hearing to determine the initial arrangements for the children.
Depending on the urgency of the matter, the Court may hold an Interim Hearing and make Interim Orders on the first Court date, however in most cases a later date will be given for an interim hearing.
Interim Orders basically are placeholder Orders that initially appear to be in the best interests of the Court. Interim Orders stay in place until the Court changes them, or until the Court makes Final Orders.
Prior to going into Court you should discuss whether an agreement for Interim Orders can be reached with the other party or their lawyer.
If you cannot reach agreement for Interim Orders the Judge may (or may not as they decide) make Interim Orders on the first Court date.
At an interim Hearing the parties generally do not give evidence to the Court and are not cross-examined. The information before the Court is what is contained in the Affidavits that have been filed. As a result, the Judge is only allowed to take into account agreed facts, or facts that can be established by independent evidence. This is again good reason to provide documents to the Court that prove what you are saying.
The exception to the rule that the Court will only take notice of agreed facts is if there are serious allegations of risk to a child. The Court will act cautiously and take notice of serious allegations of risk.
The Court will act protectively and put in place arrangements to ensure the safety of the child. Interim Orders are intended to put in place a level of stability for the child or deal with issues that cannot wait until a trial.
In some cases, the Court will adjourn the case for a period of time to obtain an urgent family report or memorandum to find out specific issues such as the views of the child or investigate any allegations of risk.
The Court may make Interim Orders before or after adjourning the matter for an urgent family report, at all times acting in what the Court assesses to be in the best interests of the child in the circumstances.
Interim Orders to consider seeking are:-
Where the child initially lives and what time they will spend with the other party
Imminent special day or holiday visits
Supervision Orders or other safeguards necessary for the child
A request for a family report or independent child lawyer to be appointed
Drug testing, psychiatric testing or other important initial enquiries
Schooling, medical, or travel arrangements for the child (if decisions must be urgently made)
Any other Order that is reasonably necessary and cannot wait until a Trial
Steps prior to a Trial
There will usually be a number of Directions Hearings for the Court to make directions to prepare or ready your matter for Trial.
Some common directions are:-
1. A party file more documents.
2. That parties exchange information or documents.
3. That an Independent Child Lawyer be appointed.
4. That a family report be prepared.
Prior to a Trial listing, the parties will appear for a Compliance and Readiness Hearing. The purpose of this hearing unsurprisingly is for the Court to check that the parties have complied with all previous Court Orders and the necessary preparation for a Trial has occurred.
If the Court is satisfied that that the matter is ready, the Court will then list a Trial date.
What is the process of a Trial?
If you are preparing for Trial you will likely have been in the Court system for over 6 – 12 months.
When the Court gives a Trial date they also give Trial directions, which is basically a list of things to do and get ready for Trial and dates for their completion.
Common Trial directions are:
Filing dates for any further Affidavit material
Filing date for a case summary
Date to inform witnesses such as the Family Report Writer
When the hearing fees for Trial must be paid
The initial evidence of each witness is solely what is contained in their Affidavits. For this reason it is crucial to make sure your Trial affidavits include all evidence you wish to put before the Court.
At Trial usually each witness is briefly asked if the contents of their affidavit are true and correct, then they are cross-examined (asked questions) by the other party’s lawyer. In some limited circumstances a party may give additional evidence to that contained in their Affidavit, however only if the Judge allows.
After oral evidence and cross examination, each party or their lawyer will make submissions to the Judge.
The submissions to the Judge usually cover:-
What Orders they ask the Court to make
The evidence has been presented to the Court
What evidence they say the Judge should accept and why
How that evidence supports the Orders they seek
Why the Orders they seek are in the best interests of the child and other matters of law.
Sometimes the Judge will give a decision on the day of the trial. However it is more common for Judges to reserve their decisions, meaning that they do not decide on the day and then give their decision at a later Court date.
The decision of the Court then becomes binding final Consent Orders for the children.
If the decision is significantly favourable to one party, the Judge is critical of one of the parties, or there is some other good reason the Court may then consider an Order for the payment of legal costs between the parties.
The default position is that each party pays their own legal costs in the family Court system. The considerations for a legal costs argument are complex, and if you are seeking legal costs be paid, no doubt you will have a lawyer who will advise you on same.
What if I breach a Court Order?
Firstly, Judges are distinctly not pleased with parties that do not comply with their Orders, without reasonable excuse.
Additionally, breach of a Court Order can have serious consequences in both a financial and punitive way.
Generally our strong advice is: follow Court Orders. However, sometimes circumstances arise that mean a Court Order cannot, and sometimes should not, be followed.
Not every failure to comply with an Order is a breach.
For there to be a breach of a Court Order, generally speaking there are two elements:-
That factually there has not been compliance with a Court Order; and
That there is no reasonable excuse for not complying with the Court Order.
Therefore if there is a very good reason not to follow a Court Order (such as family violence for example), then you may decide not to follow the Order, but you should take some immediate action such as a lawyer’s letter or an Application to the Court to vary the Orders.
An example:
Johnny was to visit his mother at 3:00pm on Tuesday afternoon. When travelling to the visit with his father they were involved in a traffic accident, and therefore the visit didn’t occur until later.
It seems fairly obvious that a reasonable excuse applies and the Court would not act on a breach.
Johnny was to visit his mother at 3:00pm on Tuesday afternoon. On the way to the visit his father decided to instead take Johnny shopping for a present for his mother and the visit didn’t occur.
Perhaps the present was well intentioned, but not a reasonable excuse for breaching the Court Order.
Johnny was to visit his mother at 3:00pm on Tuesday afternoon. On the way to the visit his father became aware of a family violence incident occurring at the mother’s household and he decided not to deliver Johnny for the visit.
Acting protectively and cautiously to prevent risk of harm and investigate the situation is a reasonable excuse and reason to not comply with the Court Order.
Will I go to jail for breaching a Court Order?
If the Court decides a person has not complied with a Court Order, and they have no reasonable excuse for doing so, then there are a number of actions the Court may take:-
Mandatory attendance at a parenting program
Making a parenting Order that compensates the other party for any time lost
Making further parenting Orders that vary the original Orders.
A legal costs Order against the party
Requiring the party to enter into a bond for a period of up to 2 years
A fine
Community service
Imprisonment
If there is breach of Orders the Court will consider changing the parenting arrangements. This could mean the child spends less time with the parent that breaches the Orders into the future.
An Order for legal costs is relatively common in matters where the Court finds a person has breached Orders. Subsequent and additional breaches are more likely to result in costs Orders.
The severity of the breach, whether there have been previous breaches, the effect on the child and other factors will all be considered by the Court when deciding whether, or what penalty to impose.
If the Court is considering a fine or a legal costs Order the Court will take into account the effect of that monetary burden on the household of the child.
A penalty of imprisonment will always be a last resort and only imposed for very serious or repeated breaches.
Assessed vs Agreed Child Support
The amount of child support for children can either be agreed by the parents or assessed by the Child Support Agency (CSA).
When the Child Support Agency assess child support they take into account the time the child spends with each parent, the number of dependents of the parents, and the parents’ taxable income.
Usually child support is worked out on the child support formula that uses the factors listed above. There is a calculator on the Child Support Agency website that you can use to work out a child support estimate.
Sometimes the child support worked out on the formula is either too high or too lower depending on the circumstances of the parents.
Some of the reasons why child support can be varied are:
the special needs of the child
the assets and property of the parents
the costs of raising the child
debts of the parents
other reasons
Changing child support from the child support formula is called a variation application. These variations are made to the Child Support Agency first, and can further be referred to a Court in some circumstances.
One of the common reasons to vary child support is when a self employed parent displays a very low taxable income, but has significant resources and finances as a result of business activity. In these circumstances the Child Support Agency will have a close look at the financials of the business to calculate an appropriate amount of child support.
In many cases parents can agree on the child support for their children. If agreement is reached the only way to make the agreement binding is a Binding Child Support Agreement (BCSA). A Binding Child Support Agreement must be signed off by a lawyer for each party, after the lawyer has given detailed advice to their client.
A Binding Child Support Agreement can cover various child support issues including:
Education expenses
Extracurricular or sporting expenses
Private health costs and medical/dental expenses
The Binding Child Support Agreement can also detail the amount of weekly/fortnightly/monthly child support payable.
It can either replace the child support assessment by the Child Support Agency, or it can work in addition to the assessed child support.
Some examples:
Child support is assessed by the child support agency at $300 per month, and additionally the parents agree to a Binding Child Support Agreement that they will pay half of the child’s education and medical expenses each.
OR perhaps
The parties agree that due to one of them not working, the parent who earns significant income will pay weekly child support and pay the private school and private health costs of the children.
A child support agreement can be tailored to the needs of the family and the children. We would be pleased to discuss your situation and suggest an appropriate level of support for your family.
Is that all?
No, that’s not all. This guide only scratches the surface of parenting family law and process. While we have provided a practical and basic overview of parenting law considerations, we most strongly recommend you seek legal advice to make sure you get the best for your child.
Millwater Tyrrell Law offers a free initial consultation with one of our partners where we will discuss your situation and provide you with advice tailored to the needs of you and your family.
For a more detailed and personalised discussion of anything in this guide please do not hesitate to contact one of our Ipswich family lawyers for a chat.
David Millwater
David is a Partner of Millwater Tyrrell Law and holds Bachelor Degrees in both Law and Science from the Queensland University of Technology (QUT).
David was admitted as a lawyer in 2003 and has been working in the Ipswich area since that time. For the last 10 years David has primarily practiced in family law, and is an accredited family law resolution practitioner.
He has assisted countless clients to achieve favourable results in their matters by both agreement and Court proceedings.
His experience includes:-
-Complicated and high value property settlement negotiations and agreements
- Relocation parenting cases
- Agreements for parenting arrangements for children
- Child support agreements
- Spousal maintenance agreements
- Mediation and conferencing
- Family violence protection applications (DVOs)
- Criminal and traffic matters
- Litigation
David has an empathetic approach and understands how important it is for people to understand their future when developing a plan of action for each client.