child custody

In any dispute concerning child custody and where children will live, the starting point is Section 65E of the Family Law Act 1975. There are normally two separate hearings, an interim hearing and a final hearing.

An interim child custody hearing will usually take place between one and two months after the filing of an application with the court. It normally begins with the judicial officer reading any sworn statements (affidavits) from each of the parties, then hearing submissions from each party (The submissions cover the issues that should be focused on, and what can be concluded from the statements) A decision is then made concerning the arrangements for the child until the final hearing.The proceedings at an interim hearing are not designed to get to the bottom of any issues or allegations. There is generally no cross examination to test who is telling the truth. That is the role of the final hearing. The interim hearing is designed to put an arrangement in place that will protect the children from harm and maintain the current status of their relationships with the parents until the final hearing.

It make take up to a year before the final child custody hearing takes place. How long it takes depends on the court in which the application is to be heard. In some cases the delay may be longer than a year.

At a final hearing, all witnesses who have given sworn statements (affidavits) will usually be required to attend court to be cross examined. All the evidence is presented to the judge, including any relevant documents. In some cases, a report from a court-appointed counselor, psychologist or psychiatrist who has interviewed the parties and observed the children, is presented to the court. In those cases, the counselor may also be cross examined.

The parties then make submissions to the judge. After considering and weighing all of the evidence, the judge then gives a decision on child custody and makes orders for the arrangements for the children. The orders stand until each child's 18th birthday or until further orders are made by the court.

When applications for parenting orders are filed with either the Family Court or the Federal Circuit Court (Federal Magistrates Court), both parties are ordered to undergo "pre-action procedures"including participation in dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.

Reaching a settlement out of court saves you and your family considerable time, stress and money.

Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.

Armstrong Legal will not only represent you in court. We are committed to assisting you in the process of dispute resolution outside of court as well as with the formalisation of agreements.

Parenting orders are legally binding arrangements which cover the following:

• Parental responsibility and decision-making
• With whom the child will live
• The amount of time with which a child will be allowed to spend or communicate with the other parent
• Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme).

If no out-of-court agreement can be reached, then an application for parenting orders must be submitted to either the Family Court of the Federal Circuit Court (Federal Magistrates Court). A parenting order may also be applied for by:

• The child
• A grandparent
• Any other person concerned with the care and welfare of the child

The decision is then made through a court hearing. The court bases its decision on what is in the best interest of the child. More information about how the court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975.

Under the Child Support (Assessment) Act, the primary carer of the child can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements.

If the Child Support Agency makes an assessment which does not seem just or equitable, it is possible to apply for an independent review of the assessment by a Senior Case Officer (SCO). The review is determined through a hearing. If you believe that your assessment needs reviewing, Armstrong Legal can assist with the preparation of material and important submissions in order to achieve the best outcome for you and your children.

It is also possible to enter into a private child support agreement with your former spouse, without having to go through the Child Support Agency. Armstrong Legal is experienced in drawing up private child support agreements and can assist you in the negotiating and formalising an agreement with your former spouse.

At Armstrong Legal, we have specialist family lawyers who assist people through the difficulties associated with the breakdown of relationships, divorce and issues in relation to child custody and residence of children.

Child support

When considering what is in the best interests of the children, the court is to have regard to the primary considerations and additional considerations. The primary considerations are:-

• To facilitate a meaningful relationship between the children and both of their parents: section 60CC(2)(a); and
• To protect the children from harm: section 60CC (3)(b)

These primary considerations often overlap and the court has to weigh up competing proposals e.g. there has been family violence, however, the children should have meaningful relationship with both parents.

Ultimately, when faced with competing proposals from parents, decisions are made by the court with regard to what is in the best interests of the children.

When considering parenting applications, together with the major considerations, the Court can also have regard to additional factors set out at Section 60CC (3) of the Family Law Act 1975 (Cth) as follows:-

• The views expressed by the child taking into account the child's maturity and understanding
• The nature of the relationship of the child with the parents; and other persons (including grandparents)

• The willingness of the parents to encourage a relationship between children and the other parent
• The effects of the proposed changes on the child's circumstances including separation from parents; or any other child or person they have been living with
• The practicality and expense of communication and affect on relationships it may have
• The capacity of the parents and other persons to provide for the child's needs
• The maturity, sex, lifestyle and background of the children and their parents
• If the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share it
• The attitude of the parents to parenting
• Family violence
• Family violence orders
• Orders that are likely to resolve issues rather than create further recourse to litigation
• Other factors the court deems relevant

• If an order for equal time is not made, the court must have regard to what is known as substantial and significant time e.g. 4-6 nights per fortnight.
• If an order for substantial and significant time is not made, then the Court must look at what other arrangement is in the best interests of the children and reasonably practicable.

When the Court makes aparenting order in relation to a child, the Court presumes that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

Section 61DA of the Family Law Act 1975 Cth.

Parental responsibility includes making all the major decisions affecting the children e.g. what school they should attend, what medical treatment they should receive etc.

In the absence of parenting orders, parties are deemed to have equal shared parental responsibility and therefore have a duty to consult with each other in relation to these issues and attempt to jointly reach a decision that is in the best interests of the children.

In some cases there are exceptions that override equal shared parental responsibility (e.g. in cases of child abuse and family violence).

There has been a great deal of research into attachment theory which relates to the bonds newborn babies form with a primary carer. Accordingly, orders for equal time are not always appropriate, such as in cases involving babies. Age appropriate orders that gradually increase time recognise the social science factors that are ultimately in the bests interests of the child.

Age development theory suggests (depending on the individual development of the child , the circumstances of separation and the involvement of the parents):-

• Babies have a primary carer (usually one parent) and should spend frequent short periods of time with the other parent;
• At about two years of age children can tolerate up to only one night away, two times a week (not in succession) from the primary carer;
• At school age (about five), this can increase to equal time, 3-4 nights on and 3-4 nights off with parents; and
• At about ten, the time apart from the parents can increase to week about arrangements.

If you want to relocate with your child, an application can be made to the Court asking the Court's permission to make orders that allow one party to relocate with the child.

The application can be made prior to the intended relocation or after your former spouse/partner has relocated with a child (where you did not consent or were not aware of the relocation).

In the application, it is important to set out why the relocation is in the best interests of the child. In your application you should include a proposal for the child to spend time with the parent who will be remaining behind.

Ultimately, the Court has to resolve the dilemma of both parties' respective competing proposals (including the right to freedom of movement) and arrive at a decision as to what is in the best interests of the child.

To give your relocation case the best chance of success, you need to explain how the proposal to relocate is in the best interests of the child. Make sure you include these points in your relocation application:

• Why the proposal is more suitable than the current arrangements;
• Evidence of proposed schooling arrangements, housing arrangements etc; and
• Additional factors including relationships with significant people, views of the child etc.

• Explain the practicalities of relocation:

• Arrangements that facilitate a meaningful relationship between the child and both parents;
• Costs of travel, travel arrangements (including accompanying on flights if applicable);
• Communications and technological applications - eg. Skype and requisite equipment.

Three notable relocation cases:

AMS v AIF (1999) CLR 160 - This is a case where compelling reasons did not need to be put in an application to relocate.

U v U (2002) 211 CLR 238 - This is a case that involved an application by a mother to relocate to India with her child. Ultimately her application was unsuccessful, however, comment from J Gummow introduces another perspective to these cases - the consideration of the possibility of the father relocating too. In these circumstances this possibility was not canvassed in evidence, however, it is a significant point worth noting.

MRR v GR [2010] HCA 4 - This is a case where a decision at first instance that an equal time arrangement be applied, was deemed to be not reasonably practicable given the remote location of town in which the mother was effectively forced to stay.

Good outcomes in relocation cases are more likely when:

• There are good reasons for the parent wanting to relocate
• The child is old enough to carry on a meaningful relationship with both parents in spite of the distance
• There is reasonable communication between parents and they are child focussed
• There is good communication with the non-resident parent, allowing fostering of the relationship when the child is not physically there
• Costs have been properly considered
• Travelling proposals are not disruptive to the children (note weekend and after school curricular activities including sporting etc)
• There is a willingness and ability of parents to foster the relationship with the other parent.

When determining applications for parenting orders, together with the primary considerations and relevant additional considerations, the practicality of the proposed orders needs consideration.

This is particularly relevant in relocation applications (where a parent wishes to relocate with the children to another area/state/country).

Before commencing a parenting case, pursuant to section 60I of the Family Law Act, 1975 you will most likely be required to attend compulsory dispute resolution/mediation in an attempt to resolve the dispute. If mediation is not successful or one party refuses to attend, a mediator will issue a section 60I certificate.

This certificate is required to be filed together with an initiating application seeking a parenting order.

If you reach an agreement at mediation, you can enter into a parenting plans s.63C or alternatively, apply for consent orders.

If an agreement is not reached at mediation, parties should give each other written notice of their intentions to file a Court application.

If an agreement cannot be reached as a result of further negotiations, parties can then seek the assistance of the Court

Disclosure and exchange of correspondence

In parenting matters the duty of disclosure extends to and covers the exchange of documents possessed or controlled by both parties relevant to the issues in dispute. This includes medical reports, letters and other relevant information.

• Where the matter involves child abuse: section 60I(9)(b)(i)
• Where there would be a risk of abuse to the child if there was delay in making the application: section 60I(9)(b)(ii)
• Where there has been family violence by one of the parties: section 60I(9)(b)(iii)
• Where there would be a risk of family violence by one of the parties if there was a delay: section 60I(9)(b)(iv)
• Where the application is made in circumstances of urgency: section 60I(9)(d)
• Where one or more of the parties are unable to participate effectively in family dispute resolution e.g. incapacity of some kind, remoteness to services etc: section 60I(9)(e)

To apply for an exception, you need to file an affidavit together with the initiating application. The affidavit needs to outline why a section 60I certificate has not been included with the application. A registrar of the court will then assess whether or not an exception will apply in your circumstances.

Under the Family Law Act 1975 (Cth) there is provision for a number of people to make an Application to the Court for Parenting Orders including:

• Persons concerned with the welfare of children: section 65C(c) of the Family Law Act 1975 (Cth); eg. parents, grandparents, other relatives and carers.
• Parties in a de facto relationship (including same sex couples) where a child has been conceived by way of artificial insemination: section 60H of the Family Law Act 1975 (Cth)

Research has shown that when a child observes their parents in conflict, this can have a greater negative impact on them than their parents actually separating. Observing parents in conflict can cause emotional damage and instability because of the child's competing loyalties to each parent. This, from a child's perspective, creates enormous instability in the child's perception of his or her future. Parents can separate with minimal impact upon children provided the children feel secure about the ongoing arrangements for them. Observing conflict between parents undermines the very fabric of a child's life. This should be borne in mind whenever conflict arises in front of the children.

Stages of development of children

The court takes into account the developmental age of children when formulating orders. Those orders may be required to change a number of times as children grow. We understand that the children may not fall into the age groups which we are about to describe, but we give a spectrum of the developmental changes of children as they grow so that you can understand where the children may fall as they move through this age spectrum.

New-born babies form a primary bond and attachment to one parent. The other parent, in order to maximise the quality of the relationship with the baby, should initially spend time with the baby as frequently as possible for short periods of time in the presence of the primary carer. This means that the baby feels secure because of the presence of the primary carer but will also become familiar with the other parent. Eventually a sufficient relationship will build between the baby and the other parent to enable them to spend time together without the primary carer being present. At this stage, optimal time with the baby would be approximately one hour a day everyday.

As children reach approximately two years of age, they are able to spend several hours away from their primary carer. At about this age, they can tolerate spending the night with the other parent away from the primary carer. No more than one night at a time should be spent away from the primary carer unless the child is already accustomed to this as any more time apart is likely to lead to separation anxiety. The single night away from the primary carer can take place a couple of times a week, but not in succession.

As the child reaches school age, they can usually tolerate a number of nights away from the primary carer. In many instances, a child will tolerate an equal time arrangement based around a cycle of three days on/four days off cycle with each parent.

As children reach approximately ten years of age, they tend to cope well with shared care of approximately "week about"(seven days on/seven days off).

Research indicates that as children reach 16 years and over, they can easily tolerate spending lengthy periods of time away from each of their parents and would prefer either a week about arrangement or a "fortnightly about" arrangement. This allows them to relax into their environment, have their own routine but still have time within that routine to interact with each parent while living with them. The research also indicates that it is the parents who suffer separation anxiety and do not cope with a fortnight about arrangement. The children tend to take such an arrangement in their stride.

Children move through the stages described at different rates and they should only be used as a general guide. The effect of having siblings with them can advance children through these stages of development far more quickly as they find security in the presence of their siblings.

An awareness of the developmental stages of your children as outlined above will assist you in making appropriate arrangements for them and will also help you in being perceived as a child focused parent by suggesting appropriate arrangements for the children at all times.

Wishes of the children

Children are not given the opportunity to give evidence in Family Court proceedings. Their wishes are expressed to the Court in three ways:

• Comments made to other witnesses which are then brought into evidence through those other witnesses. Such evidence is normally excluded as hearsay, but in family law is allowed into evidence for the court to consider as an exception;
• By expressing those wishes to an independent children's lawyer, although the independent children's lawyer is not obliged to act on the wishes expressed; and
• By interviews with a court-appointed family reporter or consultant who provides a report to the court about those interviews and what is in the best interests of the children in the opinion of the reporter or consultant.

A court will never be bound by the wishes of children in making its decision and those wishes are not usually of substantial influence until children reach an age of approximately 12 years. After approximately 12 years the court starts to take more notice of such wishes. After the age of 16 years, the court recognises that there is a practical difficulty in making orders that are not reflective of children's wishes because it becomes difficult for parents to enforce court orders that are strongly against the wishes of children of that age.

A family reporter or consultant

In most parenting matters the court will appoint a single expert to interview the children, each of the parents and any other significant people in the lives of the children (i.e. grandparents, step-parents). The experts may be a counsellors employed by the court, psychologists or psychiatrists, depending on the issues in dispute.

Once the reporter or consultant has been appointed, they have a broad general discretion as to how to go about performing their role. Usually they will conduct interviews and observe interactions between all of the relevant parties, including the children. They will generally be provided with all documents that have been filed with the court and any other documents considered relevant including medical histories and police reports. A report is produced which provides insights in relation to each of the people involved and the children's relationships. It will also provide recommendations in relation to the best interests of the children. Those recommendations are usually very influential upon the court in determining any dispute.

If you are scheduled to take part in an interview for a family report, you should talk to us about having a conference beforehand. We can discuss with you the issues that are likely to be raised in the interview and allegations likely to be made against you to assist you to express yourself when faced with those allegations at the interview or at court.

Formulation of orders

You should consider a three tiered approached when formulating the arrangements for your children:

• You should firstly work out what the regular weekly or fortnightly routine will be. It can often be useful to plot this out on a calendar using circles for nights in which they spend with you and crosses for the nights which the spend time with their other parent.
• You should consider the pattern of school holidays. In this regard, you need to think about the number of weeks of annual leave you have available each year. If you are seeking one half of all school holidays, that is likely to be six to seven weeks each year. Most full-time employees are only entitled to four weeks annual leave. You should also consider how to formulate the time you will spend with them over the Christmas school holidays. The first half of those holidays is likely to be disturbed each year by Christmas Day arrangements. In our experience, it is more beneficial to seek to have a block of time commencing on the first weekend of the new calendar year (the first weekend after 1 January). That provides a clear block of time which is likely to be available each year. It is also in our experience that unless your family enjoys winter holidays it usually provides for better family time to miss the school holidays in the middle of winter and have additional time with you at Christmas.
• You should consider the arrangements for the special days of the year including Christmas Day, Easter Sunday, Mother's Day, Father's Day, birthdays and special religious holidays. If the travelling time is not significant, you could consider sharing Christmas Day and Easter Sunday between the parents. If the travelling time is significant it might be preferable to have alternate years in relation to those days. In relation to birthdays, consider that in some years those days will fall on a weekend and in other years those days will fall on a school day. Different arrangements are likely to be required depending on whether or not the birthday falls on a school day or a non school day.

Other issues such as transport to and from changeovers, schooling, medical decisions, extra-curricular activities, and overseas travel should then be considered. If you would like to discuss this further, please do not hesitate to contact us.

Supervised time

Given the history of your relationship, it may be appropriate for you or the other parent to spend supervised time with the children.

Supervised time can take place in a number of ways including:

• Specialised going to contact centres;
• Supervision by private agencies which provide greater flexibility but are quite expensive;
• Supervision by a trusted family member or friend; and
• Supervision by you (which is rarely ordered by the court).

Other arrangements such as some form of monitoring may also be available as an alternative to supervision.

Supervision is not considered by the court to be a permanent solution to parenting problems, but rather a means to establishing a healthy relationship pattern that can continue after the period of supervision has been completed. It is also more necessary at times when a parent/child relationship needs to be re-established. Having a third party present with whom the child is familiar can assist the building of that relationship. Otherwise, supervision is often used in circumstances where a child is unable to verbalise or report on any conduct by a parent that may be inappropriate (for example in cases of suspected child abuse of very young children).

In circumstances where an allegation of abuse or neglect has been made against you, it may be necessary to consent to a limited period of supervision until that allegation has been disproven or the issue is resolved. While we understand that it is unacceptable to you to have to go through supervision of your time with the children, we encourage you to put up with it in the short-term so that you can maintain your relationship with the children and send a clear message to the Court, and the independent children's lawyer that you are committed to having a relationship with the children.

Changeovers and transportation of children

Generally changeovers should take place at activities involving the children where parents do not have to come into face-to-face contact. For this reason we recommend changeovers at school or extra-curricular activities such as children's sport.

In relation to transport, there is an incentive to be on time when parents are collecting children to spend time with them. For this reason we recommend that children should always be collected by the parent whose turn it is to have the children.

In relation to the location of changeovers, where this cannot be done without the parents coming into contact and cannot be done at the homes of each of the parents, we recommend that changeovers take place inside an agreed fast food outlet eg. McDonalds. The reasons for this are as follows:

• There is parking available;
• They usually have a number of people inside;
• They are well lit and have security cameras;
• Children are usually happy to attend;
• Children can play in the play area;
• Parents are able to have a cup of coffee if they are required to wait; and
• There are multiple exits so that the parents can leave by different exits.

(We are not recommending McDonalds food, nor do we have any interests in any McDonalds franchise).

Overseas travel

As a general rule, the court will consider international travel as being a beneficial experience for children, provided such travel does not place the child in any danger. Such danger can include the prospect of the parent wanting to travel overseas and not returning with the child to Australia.

Other than the issue of unacceptable risk associated with international travel, the court generally takes into consideration the following matters concerning such travel:

1. The provision of an itinerary containing:

• The date, location and time of departure;
• The date, time and location of arrival, and the address at which the child will be staying each night while travelling;
• The names of the other people who will be staying with the child for each night of the proposed travel;
• The telephone numbers upon which the other parent and child can be contacted during travel;
• The proposed dates and times of telephone or web cam contact between the child and the other parent while travelling;
• The amount of time from school being missed by the child while travelling;
• Any significant occasions being missed by the child while travelling;
• What is to take place in the event of any changes to the itinerary of the child while travelling; and
• The provisions for makeup time with the non-travelling parent when the child returns.

If all of the above matters are adequately dealt with by the parent proposing to travel, the Court usually has little difficulty in making orders for overseas travel by children. We recommend that you formulate your overseas travel plans bearing in mind the above factors.

In the absence of adequate answers to the information requested above, we suggest that you oppose any international travel.

Urgent passport applications

As a general rule, the Court will consider international travel as being a beneficial experience for children, provided such travel does not place the child in any danger. Such danger can include the prospect of the parent wanting to travel overseas and not returning with the child to Australia.

In circumstances where the Court does not perceive the risk of travel as being unacceptable, it will usually grant an Application of one parent to obtain a passport for a child.

Change of name

Applications to change the name of a very young baby are often successful in circumstances where the name has not yet fallen into common use such as with friends and schools. Those applications become significantly harder once the child has an awareness of their name and identity.

Applications for hyphenated names are often resolved by consent, however when those matters are to be determined by the Court, the more common result is to have an additional middle name inserted prior to the child's surname. That is not to say that Applications for hyphenated names have not been known to be successful; it is quite often only after filing a contested application with the Court that settlement of those matters comes to a head.

In relation to changing a child's name where that child has been raised and has assumed the identity of something other than its birth name, usually as a result of there being no contact with the other birth parent, are usually successful. There is an unintended consequence that can arise from such applications. Those applications are required, as a matter of law, to be served upon the other parent. The service of such an application often receives a dual response, firstly opposition to the change of name, and secondly, interest in commencing a relationship with a child. You should consider carefully whether or not there is any prospect of the other parent wanting to commence such a relationship if an application for a change of name is brought.

Independent children's lawyer (ICL)

The Court may Order that the children be independently represented. If an independent children's lawyer ("ICL") is appointed, that lawyer will talk to you and the children and form an independent view about their welfare and best interests. The ICL is not bound by the wishes of the children and has a completely independent discretion as an independent solicitor and officer of the Court in how they deal with the children and how they present their case to the Court.

Both parties generally share the cost of the ICL, which is payable at legal aid rates. If you are in receipt of a grant of legal aid you may be exempt from contributing to the cost of the ICL.

Airport watch list

The airport watch list is a system which is designed to prevent the removal of children from Australia without the consent of both parents or the Court. It is run by the Australian Federal Police and is in effect at all international seaports and airports.

The names of the children can only be placed on the airport watch list by filing an application for such an order.

Adult child maintenance

Child support is no longer payable after children reach 18 years of age but the expenses of raising children do not necessarily stop at that point. Accordingly, the Family Law Act 1975 provides for adult child maintenance to continue in circumstances where a child is continuing a course of education or suffers from a mental or physical disability. These applications are not handled by the Child Support Agency, but rather the Court. Applications can be made directly by the child to a parent or by the primary carer of the adult child to the other parent. The Court then conducts an assessment of the reasonableness of the application based upon:

• The capacity of the person bringing the claim to either support themselves or provide support to the child;
• The financial needs of the child; and
• The capacity of the other parent to make any payment order.

Time frames for consent orders

In circumstances where you and the other parentcome to an agreement concerning your dispute the agreement can be formalized by the making of court orders or a financial agreement, usually within six to eight weeks of being notified of the terms of the agreement. In some cases that period may be significantly less if everyone is prompt in fulfilling their role to bring the agreement to a conclusion.

Enforceability of arrangements

We can obtain court orders or agreements on your behalf in relation to your children, however, they are only as strong as your willingness to stand by them. Nothing we do can assist your situation if you give in to the demands of the other parent whenever they seek to informally alter the parenting arrangements. In saying this, we are not suggesting that you should be inflexible, but you should think about whether or not each proposal is appropriate when it is made and evaluate it on its merits at that time. If you do not do this and are not prepared to say no when proposals are inappropriate, there is little point in us obtaining court orders or agreement as to parenting arrangements. If you would like to discuss this further so that we can advise you on strategies to assist you, please do not hesitate to raise this with us.

Time frames for disputed cases

If the matter is litigated and requires an interim hearing on any particular issue, the current period of delay to obtain an interim hearing date is approximately four to six weeks.

From the time of filing an application for the court to litigate your dispute, the average delay by the court is currently 2-2½ years. Matters requiring urgent attention can be expedited, but must be considered exceptional in nature.