Children & Parenting Arrangements

When one parent refuses to return a child to the other, an urgent application to ‘recover’ the child can be made to the Family Court.

If your ex-partner goes on an international holiday with your children and decides not to return, or leaves without your knowledge, you may find yourself having to make a ‘Hague Convention Application’ to obtain orders for your children to come back to Australia.

Parties may also be entitled to a stamp duty exemption if the Court makes Orders requiring a transfer of property.

If you are in dispute with your partner regarding the care arrangements for your child you are required, by law to engage in what is called Alternative Dispute Resolution.

In Australia couples who are considering living together, as a de facto couple (whether same sex or heterosexual) or are considering marriage have the option of entering into an agreement to protect their assets in the event they separate. This agreement can protect not only assets in existence now, but also assets the parties purchase throughout the relationship.

A small minority of family law cases require a decision from the Court, whether it involves parenting or financial issues. Where there is a different version of facts given by each party, one of the tasks of the Judge hearing the case is to make findings of fact. In other words, which version of events does the Judge believe to be the correct version.

December is not busy just in department stores, it is a hectic time in the Family Law courts. For judges, Federal Magistrates and lawyers, December is the month where much time is spent working out where children will spend their Christmas when their parents cannot work it out. The number of cases with this issue outstanding before the Courts is so high, that the courts usually require Christmas cases to be filed no later than mid November.

In the 2008 case of Beckett & Horan the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother for a non-relative aged 17 years of age to give evidence. Counsel for the father objected.

A n agreement between the Commonwealth and States and Territories to administer and improve intercountry adoption in Australia exists.

The new child support formula is part of the overhaul of the Child Support Scheme implemented a few years ago.

The 2008 case of Dart v Graham dealt with the issue of a father wanting to take his children on an overseas holiday to Bali for his wedding. The mother opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with travelling there.

Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse.

With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child.

Australia has many residents with family ties overseas. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree upon whether a child can travel overseas with one of the parents, a court will make the decision, and the decision will be based on what is best for the child.

There are a number of courts which can deal with family law matters, whether parenting and/or financial matters between couples, whether marriage or de facto relationships. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients.

Overview of Child Support Agreements following the breakdown of marriage.

Upon the breakdown of a relationship where there are children, if the parents are unable to reach agreement between themselves as to the parenting arrangements for the children, then there is a requirement to participate in mediation prior to contemplating any Court proceedings.

Upon the breakdown of a marriage one of the issues that needs to be addressed is a financial settlement. This involves dividing the assets, liabilities and superannuation of the parties whereby each party is allocated their share of the net assets, with the end result that none of the assets and liabilities are held in joint names.

The Family Law Act prescribes that parents of children have parental responsibility, which is defined to mean all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children.

In 2006 significant amendments were made to the Family Law Act dealing with children’s issues after the separation of parents.

Parents have a legal obligation to financially support their children. When a child’s parents have separated, or have never lived with one another, they are entitled to pursue arrangements for their child’s financial support. Most often the parent with the primary care of a child will initiate the process to seek child support from the other parent.

Surrogacy is an arrangement whereby a couple wishing to have a child (“the intending parents”) commission a woman, whether partnered or otherwise (“the surrogate mother”) , to conceive the child and then surrender the child to the intending parents after birth. The intention of this arrangement is that the intending parents will raise their child as their own.