Where a ‘special medical procedure’ for a child is proposed, parental consent to the procedure will be insufficient and order of the Family Court will be required.

A special medical procedure is one that is invasive, irreversible, requires major surgery and where the consequences of the procedure give rise to a significant risk of making a wrong decision and a wrong decision carries with it grave consequences.

Examples of special medical procedures include:

• Gender identity dysphoria (GID).
• Surgical gender reassignment.
• Heart surgery.

In June 2015 the Family Court was asked to determine whether a 16-year-old child, known as ‘Dale’, who was transitioning from female to male, was competent to consent to stage 2  of GID treatment (also known as ‘testosterone hormone treatment’).

Dale had already commenced stage 1 treatment (puberty suppression hormone treatment), for which a court order is not required.

As it was likely that stage 2 treatment would result in physical changes that would be difficult to reverse, stage 2 treatment is considered a ‘special medical procedure’ for which a court order is required.

Dale’s parents and his treating medical practitioners believed that Dale was, and should be, able to make his own decision about stage 2 treatment, without a court order being required.

His parents therefore sought a declaration that he be found to be ‘Gillick competent’ and therefore able to make his own decisions in relation to treatment.

In the English case of Gillick, it was held that ‘… parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind …’

Gillick has been approved and applied by the Family Court of Australia since 1992 (Marion’s Case).

If a child is found to be Gillick competent:

• The child may consent to the special medical procedure.
• The consent of the child’s parents is not required.
• A court order is not required.

So how does the court determine if a child is Gillick competent?

The court must have regarding the child’s best interests as the paramount consideration.

The child’s ‘best interests will be determined by a consideration of:

• The age and maturity of the child
• The views/wishes of the child
• The urgency of the application

The court will consider the evidence as to the child’s best interests from:

• The child’s parents.
• Expert witnesses such as medical specialists, mental health professionals, counselors, etc.

Having regard to all of the evidence, and making a positive finding as to Dale’s ‘ … intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences, some of which may be irreversible … his views are clear and have not changed … ’, the court determined that Dale was Gillick competent and therefore competent to consent to the stage 2 treatment.

The special medical procedures jurisdiction of the Family Court is intended to protect against wrong decisions by parents that may result in irreversible wrong outcomes for children. The court has demonstrated a willingness to apply the provisions of the Family Law Act to these particularly difficult family circumstances with sensitivity, empathy and compassion.

Vanessa Mathews, accredited family law specialist at Mathews Family Law & Mediation Specialists, can assist with your questions about special medical procedures.

The short answer is no – what is discussed in family dispute resolution may not be used against you in court.

First, what is said during this process is protected by rules regarding confidentiality. Statements that you offer to a family dispute resolution practitioner, or to your lawyer in front of a family dispute resolution practitioner are protected. Such a practitioner can only disclose statements made during a previous family dispute resolution session in a limited number of circumstances. For instance, if the practitioner reasonably believes disclosure is necessary to protect a child from harm or to report or prevent damage to property they may disclose statements indicating such.

While rules of confidentiality are implicated, you should also know statements made in a family dispute resolution are also inadmissible in court proceedings. While there are a few narrow exceptions to this rule, you should be aware that statements made during a dispute resolution session are generally not admissible in court.

While many married or de facto couples terminating their relationship try to work things out amicably, it can be tough.  Here’s this person you thought you’d spend the rest of your life with, and now you don’t even want to sit next to them at the same table.  But it’s almost always best to avoid court, at least in the beginning.  We recommend trying a number of alternatives, before going to Family Court:

Work it out on your own

Sit down and talk to each other.  This can save both of you time and money.   And being able to work things out at such a difficult time in your relationship bodes well for the future, demonstrating that despite the breakdown, you can work together for what’s best for everyone.

Family Dispute Resolution 

Many couples start with family dispute resolution.   Trained practitioners in the field of family disputes, with additional training in law, social work and psychology work with a separating couple to help them through the process.   This is generally used when children are involved.

Mediation 

Mediation is led by a trained, objective person whose role is to help each of you define the issues at hand, manage the discussion and come up with solutions.  The mediator is interested in resolving the problem in the best way possible for everyone involved.  The mediator does not judge or make a final decision but will help you come to your own resolution.

Collaborative Divorce 

Collaborative divorce is similar to mediation but each side also has a lawyer and often a social worker or counsellor and a financial advisor are involved.  Together all sides work together to help both of you come up with a solution that works for everyone.  Among the incentives to make this approach work: if negotiations fail, neither sides’ lawyer can represent them in court.

When is it time to throw in the towel and go to Family Court?

Sometimes though, Family Court may really be the right way to go.  Here are some factors to consider when making the choice whether to continue (or start) alternative approaches or go to Family Court.

Imbalance of Power

If your partner is abusive or domineering or makes more money or controls the finances in the family, this may put you in a much weaker position if you are trying to work it out by yourselves.  While some neutral third parties like a mediator have experience handling these types of people, you still might find yourself stuck and unable to move forward.

Your Partner has an Aggressive Lawyer

Even the most well-meaning of people can fall under the spell of a tough lawyer.   If they are working towards “getting even” rather than being fair, it’s probably time to go to Family Court and let a judge decide.

Your Partner does not Communicate

Each side has to be willing to talk about the issues at hand, express their needs and wants and listen to the other side.  You can’t really work out a problem with someone who refuses to show up to meetings or won’t express what they want  or won’t agree to anything,  If this describes your partner – repeatedly – it may be necessary to find a good lawyer and turn to the Family Court.

Vanessa Mathews is an accredited specialist in family law, and has the expertise and experience to provide you with the separation and divorce legal advice you are looking for.

Contact Mathews Family Law & Mediation Specialists, Accredited Family Law Specialist, Level 2, 599 Malvern Road, Toorak, Victoria, phone

1300 635 529, enquiries@mflaw.com.au

Mathews Family Law: mathewsfamilylaw.com.au

Family Court of Australia: www.familycourt.gov.au

Federal Circuit Court of Australia: federalcircuitcourt.gov.au

 When there is a dispute over custody sometimes it is appropriate to have an independent children’s lawyer appointed. An independent child’s lawyer takes a proactive role and acts as an “honest broker” during custody proceedings as the child’s legal representative.

This person does not take instruction from the child, but rather they are to form an opinion after viewing the evidence and act in the best interest of the child. They are impartial, and are to ensure the child’s views are expressed in the proceedings, and make sure that all relevant matters are drawn to the court’s attention.

An independent children’s lawyer will not automatically disclose conversations with the child to the court. Rather, he or she will only disclose this communication if it is in the best interest of the child. However, if the lawyer determines that is in fact in the best interest of the child to share contents of the conversation with the court, it may do so even without the child’s permission.

When deciding whether the appointment of an independent children’s lawyer is proper, the court will consider a list of factors, that hail from a 1994 case.  Some of these factors include:

• allegations of child abuse
• intractable conflict between the parties
• issues of cultural or religious difference
• where the sexual preferences of one or both parents impinge on the child’s welfare
• issues of significant medical, psychiatric or psychological illness or personality disorder relating to the child or the parties
• where it is not appropriate for the child to live with either parent
• the proposed separation of siblings
• where one party wishes to relocate the child which would exclude the child from spending time with the other parent

An independent children’s lawyer is not necessary in most custody proceedings. Typically, they are only appropriate where the custody dispute is highly contentious, there are allegations of violence, or other extreme circumstances exist. If you think your case is one in which your child would benefit from representation by an independent children’s lawyer, you simply need to make an application to the court. Occasionally, the court will take action on it’s own initiative if it determines that doing so is in the best interest of the child.

While there is no inherent right for grandparents to spend time with or care for their grandchildren, the Family Law Act does provide some protection for grandparents. When it comes to settling custody disputes, the court is always going to act in the best interest of the child at heart. Sometimes, this will require removing a child from the care and custody of a parent and placing that child with a grandparent. Although rare, circumstances do exist that warrant this type of action.

There are two ways in which a grandparent may seek a parenting order. The first is by making an application to communicate with and spend time with their grandchild. This type of application may be appropriate where a parent has chosen to sever our relationship with the grandparent and is not allowing the grandparent to spend meaningful time with the grandchild. A grandparent may make this application regardless of whether the parents are separated or not.

The second action available to grandparents is to apply for an order seeking parental responsibility for the child. This action will only be appropriate in extreme circumstances, where both parents have proven they are unfit or unwilling to care for the child.

Grandparents who are concerned about visitation rights may rest assured that they are permitted to take action seeking visitation, and sometimes-even custody, of their grandchildren. The guiding principle in custody actions is ‘what is in the best interest of the child,’ and the relationship between a child and their grandparent will certainly be considered. If the grandparents had historically been present and involved in the child’s life the court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the child spend time with the grandparent.

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 finalize 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 on 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.

State Central Authority & Papastavrou [2008] FamCA 1120

If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned.  This is a high standard to meet, and will only apply in exceptional circumstances.

In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.

During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.

The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.

In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.

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.

In custody disputes, one of the issues parents often disagree over is which parent will decide the major long-term issues; such as where the child will attend school, what the child will be named, and the religion and cultural upbringing the child will experience. Generally speaking, the parent who physically has the child in their custody will decide the day-to-day decisions, but what about these bigger and more impactful decisions?

What is a major long-term issue?

First, we should take a look at what exactly constitutes a major long-term issue. The Family Law Act defines that these issues are those about the long-term care, welfare and development of the child and includes (but is not limited to) issues of that nature about:

• education (both current and future);
• religious and cultural upbringing;
• health
• the child’s name and
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent

Some issues might not be major long-term issues on their face, but the results of the decision impact the child and thus make it a major long-term issue. An example of this is would be when a parent starts a new relationship. This by itself would not be considered a major long-term issue, however if it results in the parent moving further away from the child it becomes one.

Generally, decisions about what the child wears, what time the child goes to bed, and what the child eats are not considered major long-term decisions. These decisions are typically made by whichever parent has the child in their custody. For instance, the father may decide while the child is in his care he will go to bed at 8:00, and the mother may decide that 7:30 is an appropriate bedtime. These decisions do not impact the long-term welfare of the child and are not typically disputed.

However, sometimes an issue that appears to be a day-to-day decision is actually a major long-term decision. This may be the case where the parents have differing views about the religious or cultural upbringing of the child. One parent may not want the child to eat certain foods or receive certain medical treatment because of religious practice, while the other parent may not follow the same practice. In this situation, the decision about what food the child will eat has become a major long-term decision and will be treated as such by the court.

Who makes the major long-term decisions?

If you have read our other articles about custody, you have noticed a trend. The law in Australia strongly prefers for parents to reach amicable decisions regarding custody without using the courts, and also for parents to share parental responsibility for the child. So, it may not come as a surprise that when it comes to making major long-term decisions, the decisions should be made jointly. This isn’t merely a preference; the Family Law Act actually imposes an obligation on parents to make a genuine attempt to reach a joint decision. Only if you are unable to do so, after attending dispute resolution, may you apply to the court for an order addressing the conflict.

Rules about specific major long-term issues

Changing the child’s name. If you wish to change your child’s name, each person with parental responsibility for the child will have to agree. If you are unable to get the other parent on board with the proposed name change, you may make an application to the court, and the court will make the decision while considering the welfare of the child. In determining if the proposed name change should be made, the court will look at several factors, including both the short and long-term effects, embarrassment expected on behalf of the child, identity confusion of the child, and the effect the change will have on the relationship between the child and other parents. Before you may apply to the court for a name change, however, the Family Law Act requires the parties to attend dispute resolution in an attempt to resolve the issue.

Relocation. Relocation is one of the most common major long-term issues that parents tend to disagree over. After enduring a separation or divorce it is not unusual for one parent to want to relocate. The parent may wish to relocate because of an employment opportunity, because of a new relationship, to be closer to family, or simply to make a fresh start. However, if the parent wishes to relocate the child as well, often the non-moving party will object. This is obviously a difficult subject and one that is emotional for all parties, including the child. Unfortunately, there is no guiding provision in the Family Law Act and no case that carves out a definitive rule regarding this issue. The courts have consistently determined that the same guiding principle applies to relocation cases as to other major long-term causes, and that principle is to make a decision that is in the best interest of the child.

When it comes to settling disputes about major long-term issues, each situation is different and has its own unique circumstances. It is always best to try and reach an agreement without involving the courts, however if this is impossible, you may apply to the court for an order resolving the dispute. The court will always act under the principle that the best interest of the child is of paramount importance, and this is the same guiding force you should adopt in your attempt at reaching an agreement.

No two families alike, especially no two divorcing families.  So parenting plans will differ, depending on the size of the family, religious affiliation, professional status of parents, income, educational needs and location, just to name a few.  The first step to creating the plan is simply sitting down together and talking.  If parents were unable to open the lines of communication during marriage, this might be an even harder task now.  But both sides must remember that the children’s needs and best interests are the priority and they come first in the parenting plan.  With that in mind, below are some essential issues that every plan should have, along with some extra ideas that families might want to consider for their plan.

A schedule for the children

This is a schedule for the children for school vacations, national and religious holidays and day-to-day living.  In the ideal, it looks towards the future, so schedules can be created on a yearly basis, with holidays and visitation days switching each year (ie Mom has the children for Christmas in odd years and Dad has them for summer holidays in even years).

Decision Making

A good plan should determine the authority and responsibilities of each parent.  The parenting plan should determine who makes which decisions.  Some parents decide that when the children are with a parent, that parent makes day to day decisions.   For young children, this might include what they eat, how often they bathe, how homework is done and when they go to sleep.  For older children decision-making will involve issues of computer and cell phone use, dating, curfews, car use and more.

The plan should also consider long-term, “bigger” decisions and give authority to either one or both parents on matters like education, health, extracurricular activities and religious upbringing.  The parents might agree that regardless of how decision-making is divided up, either parent is allowed to make emergency decisions regarding the children’s health or safety.

Taking care of the children

The parenting plan should take into account specific parenting responsibilities.  Sometimes issues come up because both parents want to be involved (for example, meeting the child’s teacher) and sometimes neither parent is able to take responsibility (for example, who stays home when a child is sick).   What about medical and dental appointments, or transporting the children between homes?   Whether there is one child or four, these questions come up regularly.  Some plans state that the parent in charge that day is responsible for these tasks.  Other plans use the “divide and conquer” method, giving dad all medical and dental tasks, say, while mom deals with all educational responsibilities.

A Method for Communicating and Sharing Information

Despite all the effort, parents will need to communicate with each other and share information.  Online calendars and schedules that can be shared and updated are a great method for keeping each other informed of changes.   Emailing and text messages enable fast communication when a quick decision needs to be made.  The plan should detail the method or methods chosen and the expectation that parents will make every effort to keep each other in the loop.

Financial Responsibility

Laying out the financial commitments and rights of each parent is an important part of the plan.  If one parent is paying child support, the plan should explain what this includes.  The plan should also determine who covers additional expenses for the children like summer camp, public transportation, special activities and pocket money.  Are both parents paying into a college or savings fund for each child?  How much should each parent put aside?  Every family is different so parents should sit down and work through as many of the expenses they currently have or foresee having in the future.

A Way to Manage Disagreements

No plan is perfect and sometimes disagreements arise.  Parents need to have a method in place for working through these disagreements.  The plan can require parents to first try working it out on their own or turning to mediation.  When parents can’t resolve their differences, arbitration may be required.  These are preferred alternatives to court because they allow each parent to be heard and help the parents hand-craft a solution that satisfies everyone.  Generally, court should be the last resort.

Evaluating and Changing the Plan

Parents and children change over time.  Sometimes it will be necessary to make changes to the parenting plan.  What happens when one parent needs to relocate?   What happens when the children get a bit older and want to make changes to the plan?  The plan should have a system for dealing with the changing needs of the family members.  Some plans require an evaluation every year.   Others might require a family discussion to get input from everyone involved.  Whatever the approach, it should be described in the parenting plan  and followed. The new plan can also be submitted to the court for orders.

An experienced family lawyer can help families create a plan that’s appropriate for them.  Below are some suggested templates for a parenting plan. Contact Mathews Family Law today to discuss your parenting plan with a specialist family law lawyer.

The Family Act 1975 ensures that children maintain their relationships with both parents and guarantees both parents the right to spend time with their children, all in the best interests of the children. One of the major objectives of the Act is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.

Today there is an assumption of shared parental responsibility between parents for their children. This responsibility includes all of the “duties, powers, responsibilities and authority” which parents have by law regarding their children. Section 61DA states that when a court makes a parenting order, it “must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. While the child may live primarily with one parent, both parents have a role in his or her ongoing, daily life.

“Equal” time v. “substantial and significant” time

If parents have shared responsibility for their children, they should also have shared time with their children. But how much time is the right amount? How much is fair to each parent? And what is reasonable to expect from the parents and from the children?

The law requires the court to first consider providing “equal” time to each parent.  A schedule with equal time might involve children living with the mother one week, then the father the next week. In some families, the children may spend Sunday through Wednesday at their father’s home and Wednesday night through Sunday morning with their mother. The court weighs two factors in order to determine if the child should have equal time with each parent. The court must ask if spending time with each parent is in the child’s best interests and is “reasonably practicable“? A court might very well determine that it’s best for the child to have equal shared time with each parent but since they live 300 miles away from each other, this is not feasible. Only if both of the above criteria are met can a court consider giving a parenting order that grants equal time with the children.

If there is (or will be) a court order giving shared responsibility to both parents, but the court does not grant an order for equal time, the court can consider giving an order for “substantial and significant” time. Again, the considerations for giving this type of order are whether this is in the best interests of the child and whether it’s practical.

If there is a conflict between what is good for the child and what is fair to the parents, the child’s welfare comes first.

What is “reasonably practicable”?

The court will weigh a number of issues to decide if it is practical for the parents to have equal time or substantial time with the children. These include:

• The distance between the two homes. If one parent lives in Perth and the other in Sydney, equal time will be difficult to establish.
• The parents’ present and future ability to work out an arrangement for the children to spend equal or substantial time with each parent. For example, in a case in the United States

What is “substantial and significant time”?

The law also clearly delineates what substantial and significant time is, making it clear to the courts what the parenting services order should include and letting parents know ahead of time what is to be expected. Significant time goes beyond a nice weekend together once a month, or dinner every Wednesday night. Parents who are given substantial and significant are expected to:

•  spend time with their children on days that fall on weekends and holidays as well as regular weekdays;
• be involved with the children’s daily routine;
• be present at occasions and events that are significant to the children (school graduation, a visiting day at camp or school, dance recitals, end-of-year sports games, etc.).

Similarly, the parent needs to include the children in events and occasions he or she considers significant (special events at work, promotions, birthdays).

The court can also consider many other factors in determining if the children are spending substantial and significant time with the non-custodial parent.

See the child custody blog for recent cases and legislative changes on issues of parenting and shared time.