Author

Alan Weiss

29th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Welcome to your most common parenting or custody questions

We answer some common questions about child custody issues.

What is an interim parenting hearings?

An Interim Hearing is a hearing which takes place as soon as the matter can be heard after the application is filed with the Court. It is normally heard about two to three months after the filing of the application, unless the application relates to an issue which the Registrar considers urgent, in which case, the application is heard as soon as possible.

Interim hearings usually take no more than a few hours to one day in Court. You may need an interim order if there are concerns about family violence or child abuse, a risk of the child being abducted or relocated, and to determine the child’s living arrangements.

Interim hearings typically begin with the Judge reading each party’s sworn statements (affidavits). After that, submissions, which cover the important issues in the case and what should be concluded from the given statements, will be heard.  As interim hearings are not designed to get to the bottom of any allegations, there are typically no cross examinations. Once the statements and submissions have been heard, the court will make orders that deals with all or part of an application that are effective until the matter can be finally determined.

What’s the process for a final parenting hearing?

It may take a year, or more, for a final hearing to be heard in Court. The length of time it takes to reach a final hearing depends on the Court in which the application will be heard.

At a final hearing, each party’s evidence is presented to the Judge, including sworn affidavits, financial statements (if applicable), family reports prepared by a Court-appointed psychologist, psychiatrist, or counselor (in parenting cases) and any other relevant documents such as documents obtained on Subpoena. Any witnesses who have sworn and filed an affidavit must also attend to Court to be available for cross-examination if they are required by any other party to the proceedings.

At Court

In the normal course, the Applicant presents their evidence first, followed by the Respondent and also the Independent Children’s Lawyer if they are a party to the proceedings.

When it is time for the parties and their witnesses to give evidence, the Judge will ask each person to step into the witness box. After they have been sworn in or given their affirmation, they will be asked if their affidavitis true and correct and whether they have anything to add to their Affidavit. The other parties will then be able to cross-examine you about your evidence, that means that they can ask you questions about your affidavit and the evidence relating to you in the affidavits of other witnesses. At the conclusion of this process, the parties will then make submissions to the Judge concluding their arguments.

After the final hearing takes place, the Court will release the Orders which contain the Judge’s decision regarding the arrangements for the children as well as a Judgement which provides the Judge’s reasoning for having made the Orders. These orders will stand until the child/children turns eighteen or further orders are made by the court.

What are pre-action procedures?

Once applications for parenting orders are filed with the Family or Federal Circuits Courts, both parties will typically be ordered to undergo “pre-action procedures”. These typically include participation in a dispute resolution program. Before a completed parenting order application can be filed, most courts require a certificate from an accredited dispute resolution practitioner.  This requirement may be waived in cases involving family violence or child abuse. Settling out of court saves your family considerable money, time, and stress.  Don’t view these requirements as a hindrance. Think of it as an opportunity.

What is a parenting order?

A parenting order is in essence, an order that deals with any aspect of parental responsibility for a child. Parenting orders are legally binding and answer the following questions:

  • parental responsibility and decision-making
  • With whom will the child live?
  • How much time will the child be allowed to spend with the other parent?
  • Will a child maintenance order, or a request for child support, be issued?

If no out-of-court agreement is reached on these matters, an application for parenting orders must be filed with either the Federal Circuit or Family Court.

Who may issue child related proceedings

  • The child
  • A grandparent
  • Any person determined to be concerned with the care and welfare of the child.

Once the application is filed, the decision be made via court hearing. In deciding whether to make a particular  parenting order, the court must regard the best interest of the child as a paramount consideration.

A parenting order cannot be made to a child who is over 18 years or is or has been married or is in a de-facto relationship.

What is parenting arrangements & Equal time orders

I begin by saying avoid using your child to fight the other parent.  I have seen stupid fights that had spun out of control and in the end the only losers are the children and both parents. If you and the other parent can sensibly agree on the future arrangements for your child/ren after separation you do not have to go to court and you will save thousands of dollars on legal fees.   You can,

  • make a parenting plan, or
  • obtain consent orders approved by a court

A parenting plan sets forth the parenting arrangements for your child/children. This includes issues such as:

  • custody or whom the child shall live with; 
  • visitation or how much time each parent can spend with the child;
  • how much each parent shall pay for child maintenance and
  • how long-term decisions about the child can be made and
  • how disputes over parenting can be resolved

A consent order is a written agreement that is approved by a court. Consent orders have the same legal effect as court orders. The Court must be satisfied that the orders you ask for are in the best interest of the child.

What is equal time

If parenting orders provide for equal, shared parental responsibility, Section 65DAA of the Family Law Act of 1975 requires the court considers whether equal time is in the best interests of, and reasonably practicable for, the child.  If an order for equal time is not made:

  • The court must make a decision regarding the practicality, and desirability of, substantial and significant time spent with the other parent. This typically calls for between 4 and 6 nights spent with the child every two weeks.
  • If no order is made for substantial and significant time, the court must then make other arrangement that provides for the child’s best interests.

How do you define parental responsibility. 

When the court issues a parenting order, it presumes it is in the child’s best interest for parents to have equal and shared responsibility.  In the absence of a parenting order, parties are determined to share responsibility and consult with one another to reach decisions that are in the best interests of their children. Both parties share in making all the major decisions that affect a child’s life such as the school they attend, what medical treatment they receive, and other such matters.

The requirement for equal and shared parental responsibility laid out by Section 61DA of the Family Act of 1975 can be waived in causes of child abuse or domestic violence.

What is age-appropriate and why do they exist

Attachment theory research suggests that orders for equal time are not appropriate for cases involving babies and young children. Age appropriate orders will be issued when the court recognizes that they are in the best issue of the child.  While it all depends on the child’s individual development, the circumstances of the separation, and the level of parental involvement, age development theory suggests:

  • Babies should have a primary caretaker (typically one parent) and spend only short periods of time with the other.
  • At about two years of age, children can tolerate up to two non-successive nights a week away from their primary care taker.

Between the ages of four and five, primary-school age, this time can truly increase to something dubbed “equal”. Typically, this means 3-4 nights on and 3-4 nights off with a particular parent.
Around the age of ten, the time spent away from their primary caretaker can increase to a week or more

What happens if one party wants to relocate with our child?

If you, or the other party, wishes to relocate with your child, an application must be made to the court requesting permission for relocation. The application can be made prior to the intended relocation, or after your former spouse (or partner) relocated without your consent. In your application, it’s important to include why this relocation is in the child’s best interests. Additionally, you should always include a proposal outlining how your child will be provided time with the parent left behind.

Ultimately, it’s the court’s responsibility to resolve any completing proposals and reach a decision that’s deemed best for the child.

What do I need for a successful relocation application?

To give your relocation application its best chance at success, you must explain why the move is in the child’s best interests. Include the following in your application:

  • A reason why the proposed relocation will be more suitable than current arrangements
  • Evidence of appropriate arrangements for your child’s housing, education, and other important factors
  • An explanation of the practical reasons behind the relocation
  • A list of arrangements to help facilitate a meaningful relationship between the child and their other parent
  • An estimate of costs for travelling
  • A list of ways, such as Skype, that your child will communicate with their other parent
  • A list of additional factors such as how the move will affect significant others

I’m not the child’s parent. Am I allowed to apply for a parenting order?

You don’t have to be a child’s biological parent to apply for parenting orders.  The Family Law Act of 1975 gives this right to several other people including:

  • Persons Concerned with the Welfare of Children: Section 65CC of the aforementioned act grants this right to any party deemed to be duly concerned with the child’s wellbeing: parents, grandparents, other relatives, etc.
  • Parties in a De Facto Relationship:  This law grants rights to a non-birthing parent when a child is conceived via artificial insemination.  However, they must be able to prove that they were in a de facto relationship when the child was first conceived.

Just how much do my child’s wishes matter in court?

Children don’t directly give evidence in Family Court proceedings. The court hears their wishes through three sources:

Comments the child make about their wishes to other witnesses. These statements can be brought up as evidence of the child’s preferences. While typically excluded as hearsay, family law allows this form of secondary testimony.

Wishes they express to an independent children’s lawyers. The lawyer is not obligated to act in alignment with the child’s preferences. Statements regarding their wishes can be shared via testimony of a court-appointed family reporter or consultant.

The wishes of children do not become a large factor in court decisions until the child reaches approximately twelve years of age. After the child reaches 16, the court recognizes a practical difficulty exists in going against the child’s orders. Regardless of how strongly the child may feel about their future living arrangements, the court is in no way bound to respect their wishes.

Why the role played by family consultant is so important

A family consultant is a single expert the court appoints to interview the child, the parents, and any of the child’s significant others. Depending on the issues involved in the case, this expert could be a court-employed counsellor, psychologist or psychiatrist.

Family consultants have total of discretion in how they choose to go about their role. They typically conduct interviews and observe interactions between all involved parties. This individual will typically be provided with any documents considered relevant to the case. Once the investigation ends, the family reporter will produce a report that provides insights into the child’s relationships and recommendations in regards to the child’s best interests. The reports given by these experts tend to be highly-influential in the court’s decisions.

Talk to your lawyer before scheduling an interview with a family consultant.

How should approach order formulation?

Consider a three-tiered approach when formulating your child’s arrangements:

First, work out the regular weekly or biweekly routine. Plotting it out on a calendar can be helpful.
Second, consider how school holidays affect scheduling. If you are seeking half of all school holidays, this will likely exceed the four weeks of annual leave afforded to most full-time employees.     

Take off the first week in January, it’s more beneficial to set aside a solid block of time each year than to have time interrupted by the holidays.

Arrange time around the special days of the year. If travel time between you is not significant, you could consider sharing days like Christmas and Easter.  If that’s not possible, arrangements can be made to alternate these holidays from year to year.

Other issues such as changeovers, medical decisions, and overseas travel should be considered.

What is supervised time?

Depending on the history of your relationship, it may be appropriate for you, or the other parent, to spend supervised time with the children. This can happen in a variety of ways:

  • You can go to a specialized contact center
  • You can hire a private agency to supervise
  • You can ask a trusted friend or family member to do so
  • Though rare, courts can also request you to supervise
  • Other arrangements, such as requests for monitoring, can be made

The court does not consider supervision a permanent solution. Instead, they see it as a means of creating a healthy relationship with the child. Having a third-party present, such as a family member, can help build that relationship.  It is also required when a child cannot report on any inappropriate conduct; this typically happens in cases where abuse is suspected.

Changeovers and transportation?

Changeovers should take place where disputing parents are not required to come face to face. We recommend at school or during extracurricular activities. As there is an incentive to be on time when collecting children, we suggest that the child be collected by the parent who will be taking the children.

If changeovers cannot be done without parental contact, or cannot be done at the parent’s homes, we recommend using a fast food location. This is a great place for changeovers for the following reasons:

  • Children happily attend
  • Most fast food restaurants have play areas
  • Parents can order coffee while they wait
  • Ample parking is available
  • They are well-lit, popular, and secure
  • Multiple exits allow parents to leave separately

What is the court’s opinion on overseas travel?

The court typically considers international travel beneficial for children. The most common danger foreseen is the parent traveling overseas choosing not to return to Australia. In addition to that consideration, the court also requests an itinerary that provides the following:

  • The date, location, and time of departure
  • The date, time, and location of arrival
  • An address where the child will be staying
  • The names of those who will be staying with the child
  • The proposed times and dates for contact between the child and their other parent
  • The amount of school being missed while travelling
  • Any significant events the child will be absent from
  • What is to take place if the child’s itinerary changes
  • Provisions for makeup time with the other parent when the child returns

The court has no difficulty allowing overseas travelling when the above matters are handled. If the other parent does not provide you with such details, I suggest that you contact your lawyer to discuss how to oppose the request.

Can my child receive a passport quickly in cases where it’s required?

A: Generally, if it does not place the child in danger, courts consider international travel beneficial for children. The court typically considers the likelihood of the traveling parent choosing not to return to Australia. In cases where the court does not perceive the risk of traveling as unacceptable, they will typically grant parents the right to obtain a passport.

Can I change my child’s name during the custody process?

The court typically approves applications to change the name of young infants. Once your child gains awareness of their identity, this process becomes much more difficult.

Requests for hyphenated names will typically be resolved by consent orders. When the court is asked to examine such matters, they typically opt to insert an additional middle name instead. That is not to say that applications for hyphenated names are never successful.

Applications to change a child’s name when the child has been raised under something other than its birth name, typically because of lack of contact with a birth parent, are often successful. However, there is an unintended consequence for such applications. As a matter of law, these applications must be served upon the other parent. Dual responses typically result. One against changing the name. One for commencing a relationship with the child. Consider if the other parent might wish for a relationship before filing for a name change.

What is an ICL?

In cases where the court orders a child be independently represented, an independent children’s lawyer (ICL) will be appointed. The lawyer will interview your child to form their own view on the child’s welfare and best interests. This person is in no way bound by the child’s preferences and possesses total discretion in both dealing with the child and presenting their case to the court.

Unless one is in receipt of a grant for legal aide, both parties typically share the cost of the ICL; they are typically paid a legal aid rate.

What is an airport watch list and how does it work?

Managed by the Australian Federal Police, the Airport Watch List prevents children involved in family law proceedings from being removed from Australia without the court’s permission. To add a child’s name to this list, the concerned parent must file an application with the Court.

The court will consider a variety of factors before approving this request. These include whether the country is a Hague Convention country, the length of the trip, and the justifications behind the traveling.  The court typically decides to oppose contested travel or to allow it with imposed conditions.

When the court rejects an application to travel overseas, they issue an injunction that prevents the child from travelling or receiving a passport. If a child is in imminent danger of being taken overseas, you can file an order directly with the Australian Federal Police.  Please contact the court via its emergency number if you can’t wait for normal working hours.

Adult child maintenance (What happens after my child turns 18?)

Required child support payments typically stop once a child reaches 18 years of age. However, the expenses of raising child may not. To account for this, the Family Law Act of 1975 provides for adult child maintenance to continue in cases where a child is pursuing an education or suffering from a physical or mental disability. All applications for adult child maintenance will be handled by the court, and not the Child Support Agency. Applications can be made directly by the child, or the child’s primary caretaker, to the other parent. The court assesses the reasonableness of the requested based on:

  • The financial needs of the child
  • The capacity of the other payment to make a payment order
  • The ability of the person bringing the claim to either support themselves or provide support to the child

How long will it take the court to formalize an agreed upon consent order?

In cases where you and the other parent come to an agreement regarding custody, the agreement can be formalized via court orders or a financial agreement. This formalization process takes the court an average of six to eight weeks to complete. If all parties play along, and are prompt drawing all matters to conclusion, this timeframe can be significantly shortened.

How enforceable are court arrangements?

Breaching or contravening a parenting order, or helping someone to do so, is a very serious offense in the eyes of the law. Its occurrence grants the other party involved the right to file an application for contravention or enforcement proceedings with the court.

The less severe of the two options, an enforcement order, does not punish the breaching party, but may require some form compensation. In the case of applications for enforcement, no mediation is required before filing. Contravention, on the other hand, punishes the breaching party unless a “reasonable excuse” is given. The court typically waives punishment if you believed the breach was required to protect someone’s health or if you were unaware that you were acting against the parenting order. While the court normally requires family dispute resolution in cases of contravention, they waive this requirement when serious disregard is shown for a newly crafted parenting order.

How long will it take to dispute my case?

If a matter is litigated, and requires an interim hearing on any issue, it takes approximately four to six weeks to obtain a new court date.  From start to finish, including filling out the application, the entire litigation process takes between two and two-and-a-half years. The court only expedites cases considered urgent or highly-exceptional in nature.

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