Moving Forward and Moving Away: When You Seek To Relocate And The Other Parent Doesn’t Agree

When parents separate, they are still faced with the reality of co-parenting.  This can be challenging for parents to navigate following the breakdown of a relationship, when emotions are high and unresolved issues may remain.  This is especially challenging when one parent seeks to move.

The focus for parents should always be what is in the best interests of their children. When faced with a parenting matter, this is also the Court’s primary consideration (see section 60CA of the Family Law Act 1975 (Cth) (the Act)).  In determining what is in a child’s best interests, the Court will consider the matters set out in s 60CC(2) of the Act.

It is not recommended (nor usually condoned by the Court) for parents to relocate the residence of a child without the both parents agreeing to the proposed move; or without a Court Order allowing the parent to move with the child.

When a parent is seeking to relocate with a child, the Court will be interested in how the proposed move will impact that child; having regard to their developmental, psychological, emotional and cultural needs.  For example, a parent seeking to relocate will need to consider how the move will impact the child’s education.  The Court will be interested in understanding the child’s educational arrangements, including what year the child is in at school and whether they have special educational needs (for example, that can only be met in certain schools).     

In most cases, a proposed relocation is likely to have an impact on the care arrangements for the child, and the capacity for both parents to spend time with that child as they have been.  The Court gives consideration to the benefit afforded to the child of having a relationship with their parent, and other significant people. 

Parents should be able to identify how they will be able to support a relationship between the child and the other parent if they are (and/or are not) able to move.  The Court will be interested in the practicalities of the move, including what travel will be involved to visit the other parent and the costs of that travel.  

The moving parent should be able to clearly articulate how they will support the relationship between the other parent and any other significant people in the child’s life.  This may involve giving consideration to greater time with the other parent in the school holidays and communication (for example, video communication at set times and with regular frequency).

Where a parent has been subjected to family violence by the other parent, the Court will give consideration to whether the arrangements promote the safety of the child (and the caring parent).

In making a decision about relocation, there is (generally) no easy answer.  Discussions about resolving a matter will involve one parent compromising on their position significantly, or both.  The Court will ultimately balance the parties’ competing proposals and make a determination about what they consider is in the child’s best interests.

If you are considering relocating with your child, you should speak with a specialist family lawyer to understand your rights and obligations.  You can contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Anika Buckley, Associate

Recent surrogacy reform in the ACT

The Parentage (Surrogacy) Amendment Bill 2023 came into effect in the ACT on 10 July 2024, bringing about a series of amendments to surrogacy arrangements in the ACT.

The reforms are directed to making surrogacy arrangements more accessible to hopeful parents, and to bring the ACT legislation in line with surrogacy arrangements across the country.

The primary changes to surrogacy arrangements in the ACT are:

1. It is no longer a requirement that there be two intended parents of a surrogacy arrangement, and a single person not in a marriage or de facto relationship may pursue a surrogacy arrangement;

2. The timeframes in which an application must be made to the ACT Supreme Court for a Parentage Order have been relaxed, in some circumstances;

3. To provide surrogates and intended parents greater access to fertility services and greater freedom of movement, it is no longer a requirement that a child born of a surrogacy arrangement be conceived and birthed within the ACT. Intended parents who wish to make an application to the ACT Supreme Court for a Parentage Order may utilise assisted reproductive technology treatment, or birth a child outside of the ACT;

4. It is no longer a requirement that there be a genetic connection between the child and the intended parents. Prior to the recent amendments, it was required that one intended parent provide genetic material used for conception;

5. Whilst commercial surrogacy remains unlawful in the ACT (and all other Australian states and territories), hopeful parents wishing to enter into a surrogacy arrangement are now permitted to advertise a proposed altruistic surrogacy, to improve their prospects of connecting with a surrogate;

6. The Parentage Amendment 2024 which also came into effect from July 2024, provides a prescribed list of antenatal and postnatal expenses which are deemed to be “reasonable expenses” for which a birth parent may seek reimbursement;

7. The amendments place greater emphasis upon the Court’s ability to exercise discretion to grant a Parentage Order where it is in the best interests of the child to do so.

For specialist legal advice in relation to surrogacy arrangements, contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced lawyers.

Author: Margot McCabe, Associate Director.

Altruistic Surrogacy in the ACT: Your guide to recent reforms

Making the decision to bring a child into your lives is a big and exciting milestone.  Whether you are in a relationship or you are pursuing parenthood on your own, it is not always as easy as it seems.  For some Australians, giving birth is not an option – whether due to fertility challenges, biological barriers, or other reasons.  These individuals or couples might consider other pathways to parenthood, such as adoption or surrogacy.

Surrogacy provides future parents with the opportunity to have a child, where they are unable to give birth.  Whilst in some countries you can pay an individual to give birth on your behalf, commercial surrogacy is illegal in Australia. Surrogacy in Australia is governed by states and territories.  All Australian jurisdictions permit altruistic surrogacy, where the surrogate is unable to profit from the arrangement but their reasonable expenses are covered.

If you reside in the ACT and are pursuing parenthood, you should take note of the recent changes to legislation.   On 25 June 2024, the ACT Government passed the Parentage (Surrogacy) Amendment Bill 2023 (ACT).  The Bill brings a number of amendments to altruistic surrogacy in the ACT which include:

1.      The removal of the requirement that two intended parents enter into a surrogacy arrangement.  This allows for a single person to consider surrogacy, without the need to be in a relationship;

2.      The removal of the requirement to have a genetic connection with the child.  This change will be welcomed by future parents who face fertility challenges as it allows for traditional surrogacy (where the altruistic surrogate may conceive a child using their own egg); and

3.      All parties are required to seek independent legal advice and counselling prior to entering into a surrogacy arrangement.  This will likely reduce the potential for conflict, as altruistic surrogates and aspiring parents can better understand their rights and the nature of the surrogacy agreement.

The amendments better align ACT’s surrogacy laws with that of other Australian states and territories.

Surrogacy presents unique legal challenges for all adults involved.  For example, if you engage in commercial surrogacy, it may be difficult to gain recognition as the child’s legal parent in Australia, and the surrogate may remain the legal parent of the child.  Many future parents and potential altruistic surrogates negotiate and enter into surrogacy arrangements, which can stipulate what ‘reasonable’ expenses will be covered.

The likely costs involved for intended parents and the surrogate may include fertility treatment, legal advice (for you and the surrogate), counselling and psychological assessments, pregnancy and birth related expenses, and costs associated with obtaining a parentage order. Additional costs you should consider may include travel costs, loss of income, allied health treatment and pre-natal supplements.

Surrogacy laws can be tricky to navigate on your own.  For advice in relation to surrogacy laws in the ACT, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Parental Responsibility and Best Interests Explained

The passing of the Family Law Amendment Act 2023 has codified considerable changes to the concept of parental responsibility. Parental responsibility has been a central concept in family law matters for some time. It is the responsibility parents have in relation to major long-term decisions about the welfare and development of their child/ren, for example where they live, the school they attend, medical decisions, their name, and religious and/or cultural upbringings.

In 2006, changes to the Family Law legislation saw the introduction of the concept of equal shared parental responsibility, and provided that unless there were reasonable grounds to believe that a parent of the child has engaged in family violence that it would not be in the best interests of the child, that a presumption of equal shared parental responsibility applied. The Australian Law Reform Commission found in its 2019 report that the presumption that separated parents have equal shared parental responsibility for their child/ren was too frequently misinterpreted as a presumption of an equal shared care arrangement. The occurrences of misinterpretation of the law is said to have created a risk of harm to children.

The Family Law Amendment Act 2023 removes this presumption such that each parenting case before the Court will be evaluated on the matter’s specific merits, primarily focusing on the child/ren’s best interests. The Amended Act simplifies the objects of Part VII of the Family Law Act 1975 (Cth) as follows:

1.       To ensure that the best interests of the child are met, including by ensuring their safety; and

2.       To give effect to the Convention on the Rights of the Child.

The Amended Act simplifies the section 60CC factors  - those factors that the Court considers to decide what parenting arrangements will be in the best interests of the child – from the previous and hierarchical primary and secondary factors, to the-now six factors of general considerations and two further considerations if the child is Aboriginal or Torres Strait Islander. These six factors of general consideration are:

1)      What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

a)       the child;

b)      and each person who has care of the child (whether or not a person has parental responsibility of the child); 

2)      Any views expressed by the child;

3)      The developmental, psychological, emotional and cultural needs of the child;

4)      The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5)      The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

6)      Anything else that is relevant to the circumstances of the child.

These simplified and streamlined factors are intended to provide the Court with wide discretion to make decisions which posit the safety of children at the forefront of any arrangement. Parents at all stages of the separation process will need to consider these changes. An understanding of who is able to exercise parental responsibility in relation to what issues, and how and when joint decisions are to be made in relation to children, is an important yardstick to achieving successful parenting outcomes.

The practical impacts of these changes are yet to be seen, and our team of family law experts at Robinson + McGuinness will be closely following the development of jurisprudence in relation to parental responsibility from decisions in both Division 1 and 2 of the Federal Circuit and Family Court of Australia. If you need clarification regarding these latest amendments to the Family Law Act 1975 (Cth) or you would like advice on how they may impact your situation, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Lauran Clifton

Child Inclusive Mediation: Can my child have a say?

The time of separation can be associated with complex feelings of loss and grief. It is usually at this exact time that parents are expected to make very important decisions about parenting moving forward. What household will our children live in? How much time will they spend with me and with the other parent? How are our children expected to transition into this completely novel arrangement? The resolution of parenting arrangements after separation can often be a complex process, not least of which because the idea of having to give up any time with a child can be an extremely daunting prospect when a person is already experiencing the grief and loss associated with the breakdown of their relationship with their former partner.

Separated parents usually attempt to organise their parenting arrangements via discussion, compromise and through participation in dispute resolution, such as mediation. Of course, this is a requirement under Part VII of the Family Law Act 1975 (Cth) (the Act), save for a handful of exceptions outlined at section 60i(9) of the Act. Where parents can reach agreement, these are usually documented through a parenting plan or a binding agreement made by the Court (known as Consent Orders).

Fundamental to the dispute resolution process in relation to parenting, is the ability for separated parents to put aside what their individual wishes might be in relation to the care arrangements of the child, and to put the child’s best interests and developmental needs above their own. Sometimes traditional models of family dispute resolution and mediation do not fit the needs of separated parents and their children. It might be that Child Inclusive Mediation would be a more suitable process for these families to partake in.  A Child Inclusive Mediation provides the opportunity for the child to express their views to an independent third party- views which might not otherwise be expressed within the confines of the family dynamic.

A Child Inclusive Mediation usually involves you and the other parent, and the child (or children) separately attending upon a qualified child expert or specialist for the purpose of an interview. This child expert is usually someone who has tertiary qualifications in child psychology and oftentimes will be dually qualified in family law. They will ask subtle and non-confrontational questions to adduce the child’s views on the arrangements and ascertain any effects of the separation on the child/children.

The parents will then attend a mediation separately. It is important that parents understand the child (or children) will not attend this aspect of the Child Inclusive Mediation. The child expert may act as mediator as well, provided they have the requisite qualifications, or will remain in attendance with the mediator to provide insight into the children’s views throughout the mediation process. The child expert will usually convey what the children have told them in their private sessions, provide an expert opinion on this, and identify any potential pathways forward. It is hopeful that the parents can then come to a parenting arrangement which takes into account the child’s views, in a very safe and child focussed manner.

Not every family dynamic is suitable for Child Inclusive Mediation. The Family Law Act provides that the Court can have regard to any views expressed by the children when determining what Orders to make. However, for really young children, how much weight can the Court attach to their views? For adolescents or late teens, the weight the Court would attach to their views would likely be much higher. A Child Inclusive Mediation, might be very helpful if you have children who are of an age where they can clearly express their views and wishes. If you believe your family may benefit from Child Inclusive Mediation, or you are considering whether this is a suitable process for you, do not hesitate to reach out to our team of experienced family lawyers here at Robinson + McGuinness Family Law.

For advice in relation to your family law matter, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Lauran Clifton

Reconsideration of Final Parenting Orders – the new section 65DAAA of the Family Law Act codifies the long-standing rule set out in Rice & Asplund.

Final parenting Orders are made every day, either by consent, or following protracted litigation in the Federal Circuit and Family Court of Australia. It is intended that final parenting Orders apply and operate until the children turn 18 years old. However, it is sometimes necessary for final parenting Orders to be reconsidered prior to their expiry to ensure that the Orders continue to operate in the best interests of the children.

Commencing 6 May 2024, the Family Law Act 1975 will be amended to insert a new section 65DAAA into the Act; this new section of the Act will specifically deal with the reconsideration of final parenting Orders (something which previously has only been dealt with by case law).

The new section 65DAAA will state:

If a final parenting Order is in force in relation to a child, a court must not reconsider the final parenting order unless:

1. The Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

2. The Court is satisfied that, in all circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

The new section 65DAAA will apply to all matters before the Court from 6 May 2024.

The new section 65DAAA is a codification of the principle set out in the case of Rice & Asplund, which provides that the Court should only hear an application to alter an earlier parenting Order if the Court is satisfied that there has been a material change in circumstances such that a rehearing of what is in the children’s best interests is warranted.

When deciding whether there has been a significant change in circumstances, such to justify the reopening of the proceedings, the judicial officer is required to make a discretionary decision about whether the Applicant’s evidence demonstrates a prima facie change in circumstances and weigh the significance of that change, against the potential benefit or detriment to the children caused by the reopening of the proceedings.

What is a significant change in circumstances?

With the amendments not due to come into effect until 6 May 2024, there is no current case law outlining what the Court considers to be a significant change in circumstances. However, until such case law exists, it is expected that the Court will have regard to previous case law which has dealt with the principle set out in Rice & Asplund.

Rice & Asplund considers material changes in circumstances; examples of which include:

• A decision by one of the parties to relocate which was not contemplated at the time of the final parenting Orders being made;

• The views of a child in circumstances where time has elapsed since the making of the final Orders; and

• A change in a parent’s mental health and wellbeing.

A further discussion about what is classified as a material change in circumstances can be found here.

The Court does not entertain applications to amend or set aside an earlier parenting Order lightly. If you are considering such an application it is important that you obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Sorting out the children’s care arrangements

If you have separated from your partner and you share children together, life will (of course) be different. This is especially so if you are no longer residing in the same property. Where you have moved out, or your spouse has, it is important to establish arrangements for care of the children as early as possible.

In discussing the children’s care arrangements, you can decide whether you will implement an ‘interim’ arrangement (say for a few weeks, months or even a year), or you may already have a good idea about what your ‘final’ arrangements might look like (i.e. until the children turn 18).

Generally, you and your former spouse should agree as to any care arrangements together rather than one parent unilaterally imposing the arrangements on the other parent.

To formalise any agreement reached:

1. parents can enter into a ‘parenting plan’ which can be as simple as writing down your arrangements on a piece of paper, then signing and dating the document; or

2. you might also decide to formalise the arrangements in consent orders that the Court approves and ‘stamps’, however this is generally only done when you have agreement about final arrangements.

If you do not reach agreement, you may wish to engage a mediator, who is an independent third party who can assist you in finding an outcome that is mutually suitable (even if you do not consider it to be your best-case scenario).

Important things to think about when you are considering entering into a parenting plan include:

1. What will the arrangements look like during the school term;

2. Will the arrangements change during the school holidays, and what will you do over the longer Christmas/summer school holiday period;

3. Will there be set times for the children to communicate with the other parent;

4. How will you share special occasions, such as religious holidays and birthdays;

5. Which special occasions are important to celebrate - either for you or the other parent;

6. Are there any ground rules you want to establish for travel, whether that be domestic travel or international travel;

7. How will you share important information, such as the details about children’s health or medical treatment;

8. How you and the other parent will communicate, i.e. by email, text, Whatsapp or via parenting communication app.

Before negotiating care arrangements, you should also consider where you will both be residing and your working arrangements, including whether either parent has access to flexible working arrangements.

Ultimately, in deciding which arrangements you put in place for the children, you should think about whether those arrangements will work for the children. This in turn will influence whether the arrangements are in the ‘best interests’ of the children. Whilst some parents consider that an ‘equal time’ or 50/50 arrangement is ‘fair’, this is not always appropriate particularly where the children are young and have an established primary carer. You should also consider the children’s typical routine and whether the children can maintain this routine with the proposed arrangements.

If you are thinking about discussing care arrangements for the children, or if you are concerned that the care arrangements are not working, you should seek advice from a specialist family lawyer. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Travel and Parenting Orders

With the school holidays fast approaching, many parents will be travelling internationally with their children. These experiences are seen as a once in a lifetime opportunity for lots of families and the benefits of international travel on the growth of a child can be intangible. As a separated parent, travelling with children gives rise to additional considerations and planning- on top of the effort which already goes into the trip itself.

This situation becomes complex for separated parents who are involved in current proceedings before the Federal Circuit and Family Court of Australia or where separated parents have already entered into parenting orders restricting their children from international travel. Sections 65Y and 65Z of the Family Law Act 1975 (Cth) specifically set out that if a parent, who is subject to a parenting order or where orders are pending (for example, awaiting the delivery of a judgment on an interim or final basis) removes a child from the jurisdiction of Australia, this parent has committed an offence. This offence carries a penalty of three years imprisonment.

What if I do not have orders in place or I am not in litigation?

A separated parent seeking to travel overseas with their children should approach the other parent and seek their consent for the travel in the first instance. Ideally, the parent seeking to travel would provide all the relevant information and details of the proposed travel- and with as much notice as possible- including duration, destination, method of travel, copies of travel tickets and itinerary, and where possible provide options for maintaining communication between the other parent and the children whilst overseas.

If the other parent refuses consent to the travel, you may need to apply to the Federal Circuit and Family Court of Australia for approval to travel. It is commonplace for this Court to make Orders pertaining to travel and provide for international travel so long as enough notice is provided, and the travel is to a Hague Convention Country, and that they are satisfied that the child will return to Australia at the end of the proposed travel. Often, the Courts order makeup time for the non-travelling parent if time with that parent is affected by the child’s travel.

What if I have concerns about my child’s international travel with the other parent?

In some cases, parents will have genuine concerns about a child travelling internationally for a number of reasons- risks to personal safety and wellbeing; impact on education if the child is missing school for a prolonged period of time; and where the parent holds a genuine concern that the child might be permanently removed from the jurisdiction of Australia. There may be valid reasons for a parent to not provide consent to the travel.

If you hold this concern about your child’s travel, you can make an application to the Federal Circuit and Family Court of Australia to have the child placed on the Australian Federal Police Watchlist. This can only occur via a Court Order and will prevent that child leaving any port of exit from the jurisdiction of Australia. In cases of urgency- where you have a grave concern that your child will be travelling imminently with the other parent- this process can occur very quickly.

It is important for separated parents to balance the benefits of overseas travel for their children with the possible competing interests of ensuring their safety and wellbeing. It is important to seek the other parent’s consent in the first instance when seeking to take your child overseas- and with enough notice where possible. If you are planning a holiday with your children, contact Robinson + McGuinness for specialist family law advice.

Contact Robinson + McGuinness today to arrange an appointment on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Lauran Clifton

Do my children need a lawyer?

If you are involved in Court proceedings about the care of your children, you may wonder whether the children should have their own lawyer. In some circumstances, the Court may appoint an ‘Independent Children’s Lawyer’ (an ICL) to provide independent representation for the children. The ICL is not your lawyer, nor are they the other parent’s lawyer.

How does the Court decide to appoint an ICL?

The Court usually considers a number of factors in the appointment of an ICL (outlined in the decision of the Full Court in Re K [1994] FamCA 21), including matters involving:

1.  Allegations of child abuse or neglect;

2.  High levels of conflict between the parents;

3.  If a child has strong views (and their views should be given weight due to their age or maturity);

4.  Allegations of family violence;

5.  Allegations of serious mental health issues; and

6.  Difficult or complex issues.

The Court can appoint an ICL of its own volition, or the parties can apply for the appointment of an ICL.  The Legal Aid Commission will then appoint an ICL from within Legal Aid or a private legal practitioner will be appointed.  Notwithstanding this, parties may be required to contribute to the legal costs of an ICL’s participation.

What do ICLs do?

The ICL participates in the proceedings as any party would.  The ICL can issue subpoenas to the children’s treating medical practitioners and to their schools, for example. The ICL can also issue subpoenas seeking information about the parents.

If the children are old enough, the ICL will likely meet with the children.  Having regard to the children’s views, the ICL advocates for the children’s best interests – inside and outside of the Court. 

Once appointed, the ICL is involved in each Court event and will actively participate in making sure the appropriate evidence is before the Court. The ICL will have their own position which they deem to be in the children’s best interests. Sometimes, this may be in support of one parent’s application and at other times, it may be somewhere in the middle between competing applications.

The ICL can be involved in general correspondence as the matter progresses and will participate in settlement negotiations outside of Court. As with any party, the ICL must ‘sign off’ on any settlement reached. A matter may be unable to resolve by consent if the ICL does not support the parties’ proposed orders, however the decision is ultimately up to the Court.

If you are unsure about whether your matter would benefit from the appointment of an ICL or if you are thinking of making an application for an ICL, you should consider speaking with a specialist family lawyer about your options. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Parental Responsibility Explained

‘Parental responsibility’ refers to the duties, powers and responsibilities that a parent has in relation to a child.  This becomes an important consideration as you navigate the journey of co-parenting after separation.

Parental responsibility determines who makes long-term decisions about a child, such as what school a child attends, where a child lives and whether a child practices a religion. Section 65DAE of the Family Law Act 1975 (Cth) provides that parents are not required to consult on day-to-day issues (or issues that are not major long-term issues) – for example, what a child wears or what type of food a child takes in their lunchbox.

In the absence of a Court Order determining parental responsibility, there is a presumption that both parents have ‘equal shared parental responsibility’ (also referred to as ‘ESPR’).  ESPR requires that parents consult with each other about any long-term decision to be made, and make a genuine effort to come to that decision jointly.

This presumption is set out in section 61DA of the Family Law Act.  The presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of a child has been abusive towards that child (or another child in the family), or if they have engaged in family violence, including towards the other parent.

If there is enough evidence to satisfy a Court that an order for ESPR is not appropriate in the circumstances, the Court may make an order for ‘sole parental responsibility’.  A Court may consider that an order for sole parental responsibility is appropriate if the parents are unable to make decisions jointly, or if the communication between the parents would make an order for ESPR untenable.

On a final basis the Court must disregard any orders made on an interim basis about the allocation of parental responsibility. This means if your matter is in Court and an order has been made for ESPR on an interim basis, the Court may ultimately decide that ESPR is not appropriate on a final basis.

It is also important to understand that parental responsibility does not determine what time a child spends with each parent. An order for ESPR does not automatically mean that a child will spend equal time with each parent. Courts will consider what is in a child’s best interests and whether an equal time arrangement would be reasonably practicable, among other things.

If you are unable to reach a joint decision about a major long-term issue regarding your child, or if you are concerned about sharing parental responsibility with your former spouse, you should contact a family lawyer to better understand your rights and obligations. If you are ready to book an initial appointment with a specialist family lawyer in Canberra, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Co-parenting after Separation: Medical Decisions

When you and your partner separate, there can be a big shift in how you care for the children in both the day-to-day routine and in the long-term.  In some families, one parent can be predominantly responsible for arranging and taking the children to appointments, such as dentist check-ups and routine GP visits.  In other families, parents share the responsibility for arranging and taking the children to these appointments.

When presented with a medical issue, it can be difficult when you and your former spouse do not agree about the proposed treatment or care for your child. Where no Court Orders exist or setting out who has parental responsibility, there is a presumption that you and your former spouse have ‘equal shared parental responsibility’ (“ESPR”) for the children. This means that you must consult with each other and endeavour to reach agreement about any long-term decisions, such as schooling, religious practices or medical treatment.

The presumption of ESPR may not apply if the Court has reasonable grounds to believe that a parent has engaged in the abuse of a child or engaged in family violence.  The presumption can also be rebutted if the Court deems it would not be in the child’s best interests for parental responsibility to be shared between parents.

When treating a child, medical professionals generally require the consent of a parent (or someone who has parental responsibility for that child). In some instances, where a medical professional considers that a child understands the nature and consequences of a proposed treatment, that child can proceed with the proposed treatment or procedure. The medical professional would take into account matters including the child’s age and maturity, their ability to understand the medical advice provided, and the implications of undergoing the proposed treatment.

It is important to note that in some instances, a child is not able to make their own decision about treatment and a Court Order could override their decision.

In the case of an emergency, you are able to provide consent for your child’s treatment if you present to an emergency department with that child.  If a medical emergency occurs whilst a child is in your care, you should still endeavour to consult the other parent (to the extent that you can) and keep them informed about what is happening and the next steps.

Where there is no medical emergency, decisions about long-term medical care should be made jointly where there is a presumption of ESPR (or a Parenting Plan or Court Order which states you have ESPR).  Where you cannot agree about proposed treatment and there are no circumstances of urgency, you should consider attending dispute resolution (or if that is unsuccessful, you may need to consider applying to the Court).

If you are concerned about a proposed treatment for your child or if you are worried that your former spouse is not following reasonable medical advice or recommendations, you should seek legal advice to understand your rights.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Your guide to Parenting Communication Apps

Co-parenting can be difficult at the best of times. When you are separated and no longer have the daily contact that comes with living together, it becomes even harder to coordinate busy schedules and keep everyone informed about the latest events in the children’s lives. It can also be hard to manage finances, such as paying half of the children’s sports uniforms and registration fees for soccer next term.

Many of our clients find benefits in using a parenting-focused communication app. There are a number of communication apps out there in the market and today, we shed light on the most popular apps.

Talking Parents

Talking Parents, as the name suggests, is a good option for a parenting communication app.

The free version of the Talking Parents app can be accessed on their website only. Talking Parents allows you to send and receive messages and create shared calendar events.

The paid subscription services have more features, including recorded video calls (phone calls can only occur in the US), access to call transcripts and recordings and sharing and storing documents in the app.

It is worth noting, as Talking Parents is US-based, some features are not available in Australia (such as recorded voice calls and payment features). Talking Parents does not allow you to add a third party to view your account (and communications).

Current pricing: free, $9.99/month or $24.99 per month

What stands out: there is a free version, if you only want the standard features

For more information, visit: https://talkingparents.com/home

Our Family Wizard

Also created in the US, OurFamilyWizard has a number of great features, including:

• a shared calendar;

• message board;

•  journal (where you can share photos or documents);

• an expense log (which allows you to attach receipts); and

• an ‘info bank’ to store emergency contacts, vaccination records etc.

OurFamilyWizard is a paid subscription, which allows you to add third party accounts (such as including additional parents, grandparents and extended family members). Third parties are then able to access the family calendar and receive updates.

OurFamilyWizard also has a feature which allows your lawyer or mental health practitioner to ‘view’ your account as you would, meaning they can keep abreast of the issues you are experiencing and assist you in managing any conflict.

Current pricing: $154 for a 12-month subscription ($12.8/month) or $270 for a 2-year subscription ($11.25/month), 30-day ‘money back guarantee’ offered   

What stands out: this app has a number of great features, including ‘ToneMeter’ which identifies potentially emotionally charged comments which are worth thinking about before you send

For more information, see: https://www.ourfamilywizard.com.au/

2houses

Created in Europe, 2houses has an interactive calendar (which allows you to initiate a schedule change request, and the other parent can offer an alternate date for make-up time). The 2houses app synchronises with your usual calendar (i.e. iCal, Outlook or Google).

You can also manage your expenses on 2houses and communicate with the other parent. 2houses offers an information bank, with document storage and a summary of your child’s information (such as clothing size, useful contact details and more).

You can also request access for your lawyer so they can view your account, including schedules and communication.

Current pricing: $159 for a 12-month subscription ($13.25 per month), free 14-day trial

For more information, see: https://www.2houses.com/en

AppClose

AppClose has a shared calendar which also has ‘request’ features to manage any make-up time. There is a messaging feature which allows you to see whether your message has been viewed and when. There is an audio and video call feature (which can be disabled). You can send requests with documentation, such as a receipt. You can also export records if you need to share documents or records with yourself (or your lawyer).

Current pricing: free

For more information, see: https://appclose.com/

Other parenting apps available

There are a number of other parenting apps out there. Some include:

Ø  Cozi (a free app with a calendar + shared lists/notes, in-app purchases available)

Ø  FamCal (another free app with a calendar + shared lists/notes); and

Ø  WeParent (a paid subscription app with calendar and messaging features)

Whether you are engaged in a family law matter and need advice about which parenting app is most suitable for your circumstances, or if you need advice on negotiating arrangements with your former spouse, contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Reopening parenting proceedings: What is a material change in circumstances?

A commonly referred to parenting case, Rice & Asplund 179 FLC, set an important precedent that a finalised parenting case ought not be reopened unless the Court is satisfied that there has been a significant change in circumstances. The change does not need to be so significant that it would clearly result in a change to the orders, however the change or fresh circumstances must demonstrate a real likelihood of change being made to the orders.

So, in what circumstances has the Court found that there has been a significant change of circumstances?

• The relocation, or proposed relocation of a parent is a common basis upon which the Court will permit reopening of proceedings. In the case of Stern & Colli [2022] FedCFam C1A 95, at the time that final orders had been made by the (then) Federal Circuit Court of Australia in 2017, the Father had been living approximately four hours from the child, who lived primarily with the mother. He sought to reopen proceedings in 2020, after he had relocated such that the distance between the Father and the child was reduced to a 40-minute drive. The Father’s application to reopen was dismissed, however on appeal, the Full Court of the Federal Circuit and Family Court found that the Father had demonstrated sufficient reasons to reopen the parenting case. The matter was remitted for hearing.

• In the case of Shan & Prasad (2020) FLC, the Court at first instance dismissed the Father’s application to reopen proceedings. The Father had relied on new psychiatric evidence demonstrating the improvement in his mental health. On appeal, it was found that the evidence adduced by the Husband was sufficient to warrant the reopening of proceedings.

•   In the case of Westlake & Westlake [2019] FamCA 563, the Father’s application to reopen proceedings was dismissed. Final Orders had been made providing for the Father to have only supervised time with the children. He subsequently relied on evidence obtained from a psychologist, asserting that such evidence demonstrated an improvement in his mental health such that a reopening of proceedings was warranted. The Father’s application was dismissed, with reference to other expert evidence which showed the Father’s “personality with obsessional and narcissistic traits which are very well developed which do not equate to being a mental illness which can be treated”. Those findings satisfied the Court that there was no change in the Father’s fixed views of the Mother to justify reopening the proceedings.

• The change resulting from passage of time has been a circumstance in which the Court will consider reopening proceedings. A common example of this would be when orders are made for an infant, such that there is no provision for the child to have overnight time with one parent. Of course, over time, those orders become restrictive and no longer support the best interests of the child.

• If there are allegations of physical or emotional harm or abuse, sufficient for the Court to be satisfied that there is risk of harm, the Court has reopened proceedings.

• Parties may also make Orders by consent in recognition of a change in circumstance, however it remains open to the Court to refuse to reopen proceedings, or make further orders by consent, if there is not a sufficient change in circumstances.

Ultimately, the Court needs to determine whether it is appropriate to reopen a case based on the particular facts in each case. A change in a party’s geographical location or simply the passage of time may or may not demonstrate a change in circumstances adequate to justify the reopening of parenting proceedings.                                                                                                

For this reason, it is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Can I Change My Child’s Surname?

The Family Law Act 1975 requires that parents endeavor to reach agreement about any major long term issue associated with a child. Major long term issues include matters such as which school to enroll a child, decisions relating to the child’s health, or the child’s religious or cultural upbringing. Another major long term issue specified within the Family Law Act is the surname used by a child.

If parents can’t agree about changing a child’s surname, an Application needs to be made to the Federal Circuit and Family Court of Australia to seek orders for the child’s change of name. The Court also has the power to make orders restraining a parent from allowing or permitting the child to be known by a name other than their surname. Except in cases of urgency, parties to Court proceedings need to participate in mediation before commencing Court proceedings.

In the case of Chapman and Palmer, the Full Court of the Family Court of Australia said that when considering an application for a change of name (or considering whether to restrain the use of a name other than the child’s surname), the Court should have regard to:

1.   The welfare of the child as the paramount consideration;

2.   The short and long term effects of any change in the child’s surname;

3.   Any embarrassment likely to be experienced by the child if the child had a different surname to the parent with whom the child lives;

4.   Any confusion of identity if a child’s name were to be changed, or not changed;

5.   The effect that any change in surname may have on the relationship between the child and the parent that the child has previously shared their surname with; and

6.   The effect of frequent or random changes of name.

Although these factors have often been referred to in subsequent case law, these factors are by no means an exhaustive list of the considerations which the Court can take into account when considering an application for a change of name. Other factors have been considered by the Court, such as the parent’s desire for the child to be known by their original name, the degree of identification that a child has with their parent with whom they share their original surname and the degree of identification with a step-parent or partner of their other parent.

It is prudent to obtain advice tailored to your particular circumstances from a family lawyer. Contact Robinson + McGuinness to make an appointment on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Relocation in Family Law Matters: What you need to know

Wanting to move to a new city, state, or country with your children is a common issue that arises in family law matters and is referred to as “relocation”.

So, what do you need to know about relocation matters?

1. If you want to relocate with a child or children, then you should try and talk to the other parent/s about your proposal to relocate. Attending family dispute resolution or mediation can be a useful step to discuss your reasons for wanting to move and to attempt to reach an agreement with the other parent, including what the relocation would mean for the children, for you, and for the other parent.

2. Often if an agreement is reached for the children to relocate with one parent, the children will spend more time with the “non-resident” parent during school holiday periods. If you can reach an agreement about the proposed relocation, it should be formalized by way of Consent Court Orders or a Parenting Plan.

3. If you cannot reach an agreement with the other parent about your proposal to relocate with the children, then you will need to make an application to the Court seeking Orders permitting you to relocate the children’s residence.

4. If you want to stop the other parent from relocating with a child or children, then you may elect to make an application to the Court seeking an order prohibiting the other parent from relocating the child’s residence outside a certain area or region.

5. If you unilaterally relocate the residence of the children without the other parent’s consent or without an order of the Court, there is a real risk that the Court may require you to return the children’s residence to the place that you moved from until the matter can be dealt with at a final hearing. This can cause significant disruption to your life, but more importantly to the children’s lives.

Issues of relocation are difficult matters for all parties, in particular the children and parents who are subject to Court proceedings. The effect of relocation generally means that the existing parenting arrangements, if there are any, will no longer be practicable and so new arrangements will need to be determined. The Court generally prefers to make decisions regarding a relocation on a final basis, after a final hearing, and not on an abridged interim basis.

If you are thinking about relocation with you children, or you want to stop another parent form relocating with your child, make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Ellen Russell

Child Impact Reports

The Court has made an Order for you to participate in a child impact report, so what is a child impact report?

A child impact report is a report ordered by the Court, that provides information bout the needs of the children involved in Court proceedings. The purpose of the report is to provide the Court and the parents with information about the children, their experiences, and their needs, in the context of the dispute before the Court.

The report is prepared by a Court Child Expert, who is a qualified psychologist or social worker. Court Child Experts are employed by the Court and have significant experience working within the Court system and with children from separated families.

The child impact report interviews generally occur in 2 parts over separate days. Part 1 includes interviews with each of the parents, and Part 2 includes an interview of the child or children, so long as the children are of an appropriate age and stage of development. The interviews are fully reportable, which means that nothing that you raise with the Court Child Expert is confidential.

When the Court Child Expert meets with parents and children, they may explore issues including:

1. The current care arrangements for the children;

2. The proposed care arrangements;

3. The child’s relationships with their parents, siblings, and other family members;

4. The presence or risk factors, including family violence, drug or alcohol use;

5. The presence of any mental health issues;

6. The child/dren’s age and development needs; and

7. Any other factor that the Court Child Expert identifies as important, given the circumstances.

Following the interviews, the Court Child Expert will prepare a report. The report will be provided to the Court and then released to the parties. Once the report is released, it is not to be shared or shown to any other person, without the Court’s permission. Its contents will be considered by the Judicial Officer hearing the case and it will form one of the parts of evidence in the case at a Final Hearing.

If you are involved in parenting litigation it is important to obtain specialist advice from those qualified to assist you.

To make an appointment with a member of our team please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Ellen Russell 

Parents vs Grandparents vs Carers: Who Does the Court Prioritise in a Parenting Dispute?

In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:

1. The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their parents; and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.

The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.

An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:

1. The aunt of the subject child is granted sole parental responsibility.  

2. The child to live primarily with the aunt.

3. The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.   

Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.

Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.  

While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Adopting a Child from Overseas: What Do I Need to Know

Adopting a child from overseas is known as an intercountry adoption. There are partner countries with Australia who assist in facilitating overseas adoptions under the Hague Convention, which aims to protect children from trafficking, and illegal and ill-prepared adoptions. It remains a foremost principle that the adoption of a child from overseas must be in the child’s best interests. Adoptions must also be approved by your state and territory central authority.

Currently, Australians can adopt within the following partner countries:

• Bulgaria

• Chile

• China

• Colombia

• Hong Kong

• India

• Latvia

• Poland

• South Africa

• South Korea

• Sri Lanka

• Taiwan

• Thailand

You must meet the eligible criteria of the state or territory you live in, together with the eligibility criteria of your chosen partner country. This includes whether you are married or single, same-sex, de facto and in some countries, whether you are male or female (as a single).

Other considerations are the ages of the children and the difference in age between you as the adoptor and the child and your mental and physical health. There are fees associated with intercountry adoption which vary from country to country. This can include program fees, translation fees, travel and accommodation and incidentals.

The adoption of a child or young person from overseas is recognised provided:

• The adoption is granted by the central authority of the convention country (the country from where the child is being adopted);

• Arrangements for the adoption of the child or young person have been made by the director-general or a private adoption agency; and

• An adoption compliance certificate issued in the convention country is in force for the adoption.

Having this recognition means that the legal relationship between the child or young person and the pre-adopted parents or legal guardians is now terminated provided the law of the convention country provides that. If the convention country declares that it does not recognise the adoption, it has no effect on the law of the state or territory in which you live. Should they not recognise the termination, you may be able to apply to the court to terminate the relationship between the child or young person and the pre-adoption parents or guardians.

It is dependent on the country as to who finalises the adoption order, whether it be in the country of birth or Australia. Should it be Australia, the adoption order will need to be finalised in an Australian court after your child arrives in Australia. If the above has been complied with, your child will be eligible to become an Australian citizen. You may also be able to register your adopted child’s birth through your local Registry of Births, Deaths and Marriages and then apply for the birth certificate.

If you or someone you know is considering overseas adoption, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Who Can Adopt?

If you are looking to adopt, you are required to be ordinarily resident in the ACT. You must also be on the register of suitable people. To be on the register, you must make an application in writing to the Director-General for approval to be registered as suitable for the placement of a child or young person for adoption.

If you are a couple, you need to have lived together in a domestic partnership for at least 3 years. If you are single or a step-parent, you can apply for an order to be made in your favour.

Consents to Adoptions

If you are wishing to adopt a child or young person, and they have not been previously adopted, you will be required to obtain the consent of each parent or guardian of the child or young person. If the child or young person has previously been adopted, you will need the consent of each adoptive parent or guardian. It is possible, however, to seek the requirement for consent to be removed.

Placement of a child or young person before adoption

During the adoption process, the child or young person will be placed in the care of a person with the Director-General as guardian, or to a person on the register of suitable people (intending to apply for an adoption order for the child).

The Director-General must if practical, provide the child or young person with information about the proposed placement. The child or young person will be allowed the opportunity to freely express their views about the proposed placement, be provided assistance in understanding the information and have counselling if required.

Guardianship before adoption

Prior to adoption, the Director-General is considered the guardian of a child or young person for all purposes except:

• If each person required to consent to the adoption has consented or if consent has been dispensed with; or

• If the application for adoption was made by a step-parent and the other parent of the child or young person has a continuing role as a parent; or

• The principal officer of a private adoption agency is the guardian where consent has been provided by the required persons and they have told the Director-General in writing that they are willing to assume the guardianship.

If you or someone you know is considering adoption, it is important to seek specialist advice from those best qualified to assist you. Robinson + McGuinness is available to provide you with advice about your family law matter, including adoption matters.

Contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Covid Vaccinations for Children Over 16 Years

Previously, we have spoken about parents not agreeing to vaccinate their children in an article (link) written by Anna-Kate Visser. It stated that such decisions fall within the major, long-term decisions in the scope of ‘parental responsibility under the Family Law Act, together with the recent case of Covington & Covington (2021) FLC 94-014 where it was found that the Family Court has the power to make Orders about vaccinations. But what about children who are over 16 years of age?

The reality is, the older a child is, the more regard the Court must-have for their wishes. This is dictated under section 60CC(3)(a) of the Family Law Act. This is not the primary consideration, however, which are:

1. The benefit of a child having a meaningful relationship with both of the child’s parents; and

2. The need to protect the child from physical or psychological harm.

With regard to a 16-year old, regard will be given to their:

• Maturity;

• Their level of understanding;

• Whether their wishes are well informed;

•  Whether their wishes have been influenced by one of the parents.

This will typically be assessed through an interview by a court-appointed expert.

Regard will also be given to the state-based rules surrounding what ages a child is legally able to obtain a vaccination or booster shot.

Therefore, given the above, it is unlikely that a Court would make parenting orders for the vaccination of a 16-year-old or older given their age and likely maturity to make informed decisions for themselves. This extends to prohibiting a 16-year-old from obtaining a vaccination or booster shot through parenting orders for the same reason. 

If you find yourself in this situation, you should seek specialist family law advice before taking any steps. Medical history and prior circumstances may factor into any decision that needs to be made by a third party about a child obtaining a vaccination or not.

If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.