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Best Interests of Child

Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

Why are the best interests of the child important?

When making any Court Orders or varying a Child Support Agreement, the court must always consider the best interests of the child.

Factors which determine whether or not arrangements are in the best interests of the child include:

• the benefit of the child in having a relationship with both parents,
• the need to protect the child from harm,
• ensuring children receive adequate and proper parenting to reach their full potential and
• ensuring that parents fulfill their duties and perform their responsibilities towards their children.

The principles underlying these objectives are that:

• children have the right to know and be cared for by both parents,
• children have a right to spend time on a regular basis with both parents,
• parents jointly share duties and responsibilities for their children and
• parents should agree about the future parenting of their children and
• children have a right to enjoy their culture.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. Our primary goal is to minimise risk to children and ensure proper arrangements are made for their ongoing financial, physical and emotional support. Care and compassion combined with determination and expertise are required to obtain the best results.

Mathews Family Law is an Australian law firm. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Child Support Lawyers in Melbourne

Family breakdown is a very difficult time for a child, or children, and there are many issues that need to be considered to ensure that decisions are made in the child’s best interests. When parents separate, proper arrangements need to be made for the ongoing financial, physical and emotional support of their children. The obligations of parents to provide financial support of their children are governed by the Child Support Scheme.

Child Maintenance in Australia

Child Support means financial support for children under the Child Support (Assessment) Act. Based on the child support laws in Australia, child support usually takes the form of regular periodic payments, but it can also include lump sum payments. A lump sum payment may be made by way of the payment of specific expenses or the transfer of property.

Child Support payments are made by one parent to the other (or an eligible career) to help with the costs of a child. Child Support payments are separate from Centrelink or family assistance payments. However, Child Support payments can affect the amount paid by Centrelink and the Family Assistance Office.

Child Support can be arranged:

• by agreement between parents or
• through the Child Support Agency.

Child Support can be collected:

• privately or
• by the Child Support Agency.

Top Child Support Lawyers

The lawyers at Mathews Family Law & Mediation Specialists Melbourne are experienced in dealing with a variety of Child Support and parenting cases. We can help to ensure proper arrangements are made for the ongoing financial, physical and emotional support of your child or children. We can assist you with dealing with the Child Support Agency, whether you are making an application for child support or are disputing a decision made by the Child Support Agency. We can also assist you in negotiating and finalizing a private agreement for Child Support.

If you are looking for a child support payments, connect with us at Mathews Family Law and Mediation Services.

Custody: Does my child get to decide?

There is a strong preference in Australia for parents to reach an agreement regarding custody without resorting to litigation. In the hope of achieving this goal, parents are required to attend dispute resolution and make an effort to resolve any custody issues on their own.

If you are able to finalise custody through a parenting order or parenting plan, without going through litigation, your child’s wishes should certainly be a factor in how you determine custody. The guiding light when it comes to children’s issues is that you (and the court) should act in the best interest of the child. If your child voices a preference to spend more time with one parent, or there is a clear bond between the child and one parent, this should certainly be considered while you work out custody issues.

Both parents should work to reach an agreement that suits the needs of the child, and considering the child’s wishes is often the best way to determine what the best interests of the child are.

What if you aren’t able to reach an amicable custody arrangement and you require the court to determine custody? Will the court entertain your child’s preference to live with one parent over the other?

The answer is yes. The court must consider the views of the child in determining the child’s best interest. While it is not a requirement for a child to disclose his or her wishes, should they choose to express them, the court must consider them. However, simply because the child voices a preference for one parent, does not mean that parent will automatically be given preference in the custody dispute. The court will balance the child’s wishes along with their credibility. A child’s age and maturity are relevant factors in determining credibility.

So whether you plan to reach an amicable agreement with your ex-spouse, or if you must resort to litigation to decide a custody arrangement, the child’s wishes are of the utmost importance. Considering the child’s views is a necessary step in determining the best interest of the child.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

• how far apart the parents live to form each other
• the parent’s current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents
• the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
• the impact that an arrangement of that kind would have on the child
• such other matters as the court consider relevant

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimizes cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counseling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained in how to give advice concerning disputes but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you choose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. The benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order however in most cases, it is a parent, the child, or a grandparent who is seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point, the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail the responsibilities and rights of both parents and its aim should be to create an arrangement in the best interest of the child. A parenting plan should include a breakdown of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on its own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, a conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and acting in the best interest of the child. The presence of an ICL should minimize the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they choose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child-related issues

The court takes on several principle roles when it comes to child-related proceedings. First, during the proceedings, the court is to consider both the needs of the child and the impact that the proceedings may have on the child. Essentially, the court’s role is to minimize any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally, the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, and the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

• application and affidavit of the parties
• expert affidavit
• oral evidence (testimony)
• testimony/reports from an independent children’s lawyer
• family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

Child Relocation from Sydney to Newcastle

Wilson & Wilson – [2013] FamCAFC 43

This is an appeal on parenting orders granted by the Federal Magistrate Court.  The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle.  The appeal was accepted and remanded for a rehearing.

The father, aged 57 and the mother, aged 52, had one child together, born in 2001.  The parents bought a home together in Sydney in 2004 and separated in the summer of 2007.  At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.

Initially, the parents were able to work out parenting arrangements.  From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning.  When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused.  The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.

The mother had several reasons for relocating.  The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney.  She also wanted to reduce her work hours in order to spend more time with the child.  Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney.  She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father.  The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.

The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends.  The child was close to both parents, but had a stronger relationship with his mother.  An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him.  The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits.  Additionally, he would be seeing his father less frequently.

While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well.  She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by.  She would also be required to work her current hours, or longer, in a place where she felt isolated.  The father, on the other hand, was not required to make any changes.  The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”.  The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.

Lower Court did not Weigh Evidence Correctly

The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness.  Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child.  In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”.  The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child.  The case was sent back to the lower court.

Parent who Moves the Children Must Carry the Financial Burden

Lorreck & Watts – [2012] FMCAfam 977

This appeal was brought before the Family Court in Canberra and raised the question of which parent has to pay for the travel costs for children’s visits to the other parent.

Ms. Lorreck, the mother, and Mr. Watts, the father, had two children.  In June 2012, the court gave orders allowing the mother and the two children to relocate to Cairns from Canberra. The father remained in Canberra.  The order also included seven trips from Cairns to Canberra in a two-year period.  The decision regarding the costs of travel to and from Canberra was remitted to the Federal Magistrates court.

Both the mother and the father submitted their travel expense requests to the Federal Magistrate. The mother asked that she be required to pay for only one trip per year for the children to visit their father until she could earn $1,300 per week, at which time she would pay for every second trip.  The father asked that the mother pays for every two out of three trips.

The Federal Magistrate ruled that the parents should share the burden of travel expenses equally.  He noted both the mother’s proposal to pay for every second set of airfares and also noted that she had earlier offered to pay half of all of the flights.  The Federal Magistrate recognized that the mother would need time to readjust to her new circumstances before imposing a financial burden on her, but concluded that this did not give her permission to forego her responsibility for the children.

The mother appealed the decision arguing that the Federal Magistrate did not provide adequate reasons for his decision, did not rely on the financial evidence she submitted to the court and disregarded the best interests of the children.  The mother’s income was based solely on child support and social security and after deducting her expenses she was left with $26 per week of disposable income or $1,352 per year.   The Family Court agreed that the Federal Magistrate did not explain why he rejected the mother’s proposal.   While the Family Court assumed that the Federal Magistrate did this on the basis of the mother’s original offer to pay for half of the travel costs, the Federal Magistrate did not explain his reasons for giving the order on travel expenses.  Therefore, the Family Court found that the appeal should be allowed “on the basis of the challenge to the adequacy of his reasons.”

The Family Court, however, rejected the mother’s claim that the Federal Magistrate’s decision did not take the children’s best interests into consideration.   The mother referred to section 60CC of the Family Law Act, 1975, a list of factors a court uses to determine what the best interests of the children are when granting parenting orders.  While the mother specifically referred to section 60CC(3)(e) of the Act, which allows the court to consider the practical difficulty and expense of a child spending time with the other parent, she did not raise this issue in the context of her financial burden. The Family Court did not view it as a valid claim on appeal.

Mother to Pay Three of the Seven Trips

The Family Court ruled that the mother must pay for three out of seven trips over a two-year period.  This was the mother’s alternative suggestion if the court chose not to accept her proposal that she begin paying only once she started to earn $1,300 a week.

The Family Court gave several reasons for this decision.  The judge held that the question of best interests as laid out in section 60CC of the Act does not apply to issues of travel costs.  Instead, the court found that it was the mother’s decision to move the children in the first place and therefore “must bear a significant responsibility or obligation to ensure that they are able to spend time with their father”.  In addition, while the father’s income was higher, he was not in a position to pay most of the travel expenses, particularly since he was already paying child support.  The court also found that just as the financial burden on the mother could impact negatively on the children, the mother’s failure to contribute to the travel costs might increase the father’s anger and bitterness and therefore impact negatively on the children as well. Finally, the court argued that waiting until the mother reached a certain income level was unrealistic because she might never reach that level and because “income levels can be contrived”.  Instead, the court made the mother responsible for three out of seven trips, beginning from a specific date, January 1, 2014.

Binding Child Support Agreements

A Binding Child Support Agreement takes the form of a Binding Financial Agreement, but it relates to child support. Binding Child Support Agreements can only be entered into after both parties have received legal advice from separate lawyers. Such advice is also required before terminating an agreement.

The amount payable under a Binding Child Support Agreements can be for any amount, including amounts that are less than the amount payable under the Child Support Agency formula. A Binding Child Support Agreement differs from a Limited Child Support Agreement in this respect, a Limited Child Support Agreement must include an amount at least equal to, or more than the amount calculated by the Child Support Agency formula.

Any changes to Consent Orders must be in the best interests of the child, considerations for how the changes affect the parents are secondary.

Binding Child Support Agreements can be changed by agreement (when both parents agree to change) or by Court Orders (when only one parent requires change).

How does a court make a decision about children?

The Court considers a wide range of discretionary factors in making decisions about children. The priority of the Court is always to ensure that the best interests of the children are met.

Additional considerations for the Court are:

• any views expressed by the child;

• various aspects of the child’s relationship with each parent;

• the likely effect of any change in the child’s circumstances; and

• any family violence involving the child or a member of the child’s family.

The extent to which each parent has fulfilled responsibilities in the past is also important.

The Court may also order independent evidence from a Psychologist or Counsellor to assist them in determining which care arrangements will promote the best interests of the children.

Can court orders help grandparents see their grandchildren?

Grandparents (or with an ongoing relationship with the children) can apply for an order to spend time with them.

As long as it is in their best interest, children have a right to spend time with significant people in their lives.

Grandparents must show that an order to spend time with the children is in the best interests of the children. They also may need to attend family dispute resolution before they can apply to the Court.

What are the objectives of the law relating to children?

The Family Law Act aims to ensure that the best interests of children are met by:

• ensuring children have the benefit of both their parents having meaningful involvement in their lives;

• protecting children from physical or psychological harm;

• ensuring that children receive adequate and proper parenting; and

• ensuring that parents meet their responsibilities towards their children.