Each of the parents of a child has responsibility for the child and a court can make an order which alters aspects of a parents responsibility toward their child. For example, a court could give one parent sole responsibility for decisions concerning a child’s education
As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.
Shared parental responsibility means parents must consult with each other about major long term issues affecting the child, such as education, religious upbringing and major medical treatment. Shared parental responsibility does not mean children must spend equal time with each parent, however they might spend substantial and significant time with the child. Parents will not spend equal time with their children if it is not reasonably practical or in the child’s best interests.
Substantial and significant time means:
Mathews Family Law and Mediation Services were established more than fourteen years ago as a boutique family law firm. Our offices are located in the inner Melbourne suburb of Toorak.
Our team of lawyers is experts in Family Law and Family Law Mediation. We have extensive experience and knowledge that allow us to provide an integrated approach to the complex range of issues faced by our clients. We are in a unique position whereby our family dispute resolution practitioners (FDRP) and mediators have also accredited family law experts; this ensures we bring a higher level of expertise to all our mediations.
Unlike many other family law firms, Mathews Family Law has a genuine commitment to alternative dispute resolution. This commitment is evident in the diverse range of dispute resolution options and services we offer that clients are unlikely to find anywhere else
We are passionate and dedicated to providing the best possible Family Law service in Melbourne. We have worked hard to gain expertise in all areas of family law, including complex international parenting and financial matters.
We can guide you through a wide range of issues related to legal separation in Australia. This commitment ensures we are at the forefront of family law developments in Melbourne. Vanessa Mathews was one of the first accredited family law specialists also to become accredited as an FDRP and Mediator. The Mathews Family Law team continues to provide professional development services for accountants, financial advisors and mental health professionals. We are vigorously committed to continuing to provide community service for a wide range of new initiatives. We provide all the personal service you expect of a boutique law firm with all the experience and knowledge you expect to find in a larger firm.
Mathews Family Law’s vision has always been to provide affordable access to the highest quality family law services and essential legal information. We have embraced the use of technology to support this goal. By using online platforms, Mathews Family Law can reach a much wider audience (including overseas), vastly improving the efficiency of our internal processes which results in a decrease in costs to our clients.
Via our website and Facebook page, we offer an extensive library of free explanatory videos, Facebook live recordings, downloadable e-books, radio interviews and blog articles. A valuable resource for those seeking detailed information on the public’s most frequently searched topics.
In 2011, MFL pioneered online divorce applications with www.divorce-online.com.au. and has since developed its web-based family law pathway. This process allows clients to enter their details online and obtain a personalized preliminary report, free of charge. Should the client engage the firm, this background information is used to prepare for the initial meeting with the client’s data automatically populated into various documents.
Other recent IT enhancements include interactive online forms, options to attend meetings, mediation and FDR via webcast, online payment portals and handy calculators.
All our clients benefit from clear, fully itemized invoices and trust statements with every interim invoice along with pre-payment of disbursements.
Although a boutique law firm, Mathews Family Law can offer the full breadth of family law services that all clients desire. Our clients are not left having to consult across multiple organizations to get the outcome they desire. Our services include the full range of family law dispute resolution services; such as negotiation, mediation, FDR and litigation.
MFL can also provide a secondary consultation role with institutional clients and allied professionals; this includes Relationships Australia, CatholicCare and CPAs/IPAs.
MFL is continually seeking to improve its services and enhance its performance. The firm’s principal, Vanessa Mathews, regularly consults with external experts to review the firm’s strategy, structure and operations and never shies away from creating new processes and adopting change.
Divorce law in Victoria is the same as in other states in Australia (except Western Australia). The Family Law Act (1975) applies to all Australian states and territories except Western Australia. A judge deciding on a parenting or financial matter will follow the same rules, procedures and legislation to make their decision. The unification of laws across all the states (except Western Australia) means that Family Court orders obtained in one part of Australia will be enforceable anywhere else in Australia. The child support legislation also applies in Melbourne & across Australia. Intervention orders are also recognized and enforceable across state and territory borders.
Under Australian Law, you can apply for divorce after separating for at least one year. The Family Law Act (1976) instigated the ‘no-fault’ system of divorce in Australia. The only condition required is that the marriage has irretrievably broken down. The facts about who is responsible for the breakdown of the marriage are not relevant. If dependent children under the age of eighteen are involved, a divorce will only be granted by the court if proper arrangements have been made for their welfare. If you have any queries about divorce law in Australia, get in touch with us.
There is no presumption that a mother or father is a ‘better’ parent. The child’s ‘best interests are the paramount consideration.
There is no sexuality-based presumption or laws that are applied to same-sex parents. Again, the child’s ‘best interests is the paramount consideration.
There is no ‘one size fits all’ parenting presumption. The child’s ‘best interests are the paramount consideration.
There is no ‘50/50’ asset division presumption. The asset pool will be divided according to the particular circumstances of each case, including the various contributions made by each of the parties and their future needs.
No, you may apply for a property settlement any time after separation and before the divorce (and up to 12 months after divorce).
‘Pre-nups’ are enforceable provided they have been prepared in accordance with the strict legislative requirements.
The amount of time you live with your partner is not the only criteria the court will consider when determining if a de facto relationship existed. A de facto relationship may be found to have existed where the parties lived with each other on a part-time basis only.
Mathews Family Law firmly believes in its corporate social responsibility. We also believe that corporate social responsibility is best demonstrated via actions rather than words. The firm’s Principal, Vanessa Mathews, has a Degree in Social Work from Melbourne University. She is passionate about providing low-cost and pro-bono access to information and justice. Ensuring every demographic in the community is well supported and has access to expert Family Law advice.
MFL maintains four content-rich websites, with informative videos, a Family Law Library of articles and videos, online calculators, chat and applications processes, all provided free of charge. Regular Facebook Live videos, e-newsletters and other social media posts also disseminate valuable information at no cost, and through channels that are easy to access by the wider public.
We also have several other measures that provide affordable access to the firm’s services – free initial telephone consultations, reduced fixed-fee initial consultations, fixed-price services and a choice of unbundled or full-service delivery options.
MFL is involved in the LIV Referral Service and provides education to other professionals. We actively work to create a strong Family Law community, with representatives participating in the following organizations: Relationships Australia Family Lawyers Panel; LIV Specialist Committee; International Academy of Family Lawyers.
Mathews Family Law is a multi-award-winning family law firm operating out of the Melbourne inner suburb of Toorak. Some of the recent awards won by the firm include:
If you are looking for Melbourne’s best family lawyers look no further than Mathews Family Law, Book a Free consultation today to start the process.
Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.
Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.
Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.
A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).
If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).
The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.
The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.
When making parenting arrangements, parents may consider a range of issues including:
While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.
If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.
The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.
Consider what is best for your children’s short-term and long-term wellbeing.
Work out what concerns need to be addressed in your parenting arrangement.
Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).
Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues. Our specialist solicitors and family dispute attorneys are able to help you with your parental rights.
As the issue of mental health continues to gain more traction within the area of Family Law, at a practical level, and without holding the necessary expert qualifications required to properly identify and diagnose mental health conditions, at what point does a practitioner (legal or otherwise) determine if a client has the capacity to provide appropriate instructions?
Justice Power in PY v RJS & Others outlines the general legal test for capacity as follows:
The “Client Capacity Sub-Committee” of the New South Wales Law Society has developed guidelines to assist practitioners concerned about the competency of their clients to give proper instructions. By way of summary, practitioners should be wary of the following:
Subject to any specialist evaluation of the client’s legal capacity, or should it be the case the matter is already in Court, it may be appropriate to appoint a “Case Guardian”. This process involves filing an Application with the Court pursuant to rule 6.08 of the Family Law Rules 2004 together with an Affidavit in support containing the relevant evidence (i.e. short report from the client’s treating specialist regarding the client’s mental health and likely duration of any diagnosable condition).
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.
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).
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.
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.
Some divorces are ugly – both parties will “lawyer up” quickly, choosing lawyers known for achieving certain results. These divorces usually involve allegations of adultery, contentious custody battles, or high dollar property settlements. When there is a lot at stake, the claws come out.
Other divorces are more amicable. Sometimes couples simply fall out of love, recognize that it is time to move on, and can reach an agreement fairly easily regarding their divorce related issues.
Most divorces fall somewhere in between these two extremes.
For couples that lean more towards the second scenario, collaborative divorce might be something to consider.
What is Collaborative Divorce?
Collaborative law utilizes a non-adversarial approach to settling differences and resolving disputes. The parties, lawyers, and other professionals involved in the process all enter into a formal agreement to focus on reaching a settlement without resorting to litigation.
In collaborative law, if successful, parties can expect to never see the inside of a courtroom. All negotiations and exchange of information will take place in meetings where both parties, as well as their lawyers, are in attendance.
Different from Traditional Divorce
One core value of collaborative law is to allow the parties to feel as though they are a part of the process. For many who chose traditional lawyer-based negotiations, they feel disenfranchised, like the lawyers are in control and they are simply along for the ride. Collaborative law aims to help the parties feel as though they are actually involved in working through the problems and reaching a solution.
Another core value of collaborative law is to achieve a solution that allows the parties to have a productive post-separation relationship. Simply by opting for the collaborative law process over traditional divorce proceedings, the nature of the negotiations changes dramatically. Parties tend to be more amicable, and they agree to avoid “game playing” like withholding child support or spousal support.
What is in a collaborative contract?
If you opt to resolve your issues through collaborative law, you will need to sign a collaborative contract. Most importantly, the contract will rule out immediate litigation through the “disqualification clause.” This clause expressly prohibits a party from commencing litigation during the collaborative process, and it also prohibits a party from threatening such.
Another aspect of the disqualification clause is that it bans the lawyers involved in the collaborative process from being involved in any subsequent litigation should the collaborative process fail. If the parties are unable to reach a settlement and ultimately do litigate their issues, they must retain new counsel.
Beyond the disqualification clause, the contract will set forth other rules and consequences. For instance the contract will require both parties to give full and honest disclosure of all relevant information and will outline what is to take place in the event of a breach. A contract also may request parties act in good faith, focus on the well-being of themselves and their children, and also require the parties to contribute to developing mutually beneficial options.
The Process: 4-Way Meetings
In collaborative law, parties negotiate and discuss settlement options in a neutral setting through a series of face-to-face discussions. This is a stark contrast from traditional lawyer-based negotiations where the parties have limited contact and rarely see each other. In a traditional mediation, the parties might never even lay eyes on each other throughout the whole mediation. In collaborative law, however, they parties will be face-to-face.
These meetings are called “4-way” meetings because both parties are present, as well as their respective lawyers. These meetings are characterized by direct communication amongst the lawyers and the parties – this is not a situation where a lawyer will speak on behalf of the client. All four people are actively engaged in open dialogue about the issues to be resolved.
While the lawyers will undoubtedly meet with the parties in advance and prepare for the meeting, the majority of the work necessary to resolve the dispute takes place at the meeting and requires direct input by the parties.
Other professionals may also be involved in the 4-way meeting. It is not uncommon for a psychologist, child specialist, financial expert or other professional to be involved. These meetings are tailored to reflect the needs of the parties and will involve professionals whose opinion can have an impact on achieving the best possible solution.
The Approach: Interest-Based Negotiations
Even the way the parties negotiate at a 4-way meeting is different than in traditional lawyer-based negotiations. Collaborative law places an emphasis on something called “interest-based negotiations.” This refers to the concept that the parties are to focus on their needs and interests rather than their positions and grievances.
Rather than approach the 4-way meeting with a mindset to discuss what has happened in the past, the focus is more on the future. This helps the parties to look past incidental or ancillary problems and it encourages realistic expectations.
Interest-based negotiations also encourage creative solutions. If parties were to litigate custody issues a judge would come up with a very black and white custody schedule. If you settle custody issues through collaborative law, the possibilities are endless. You can work out a schedule that is atypical and meets your needs better.
Is Collaborative Law For Me?
If you are the type of person who says “we are only going to hire lawyers if we can’t work it out and it gets really ugly” then the collaborative route is probably for you. If you tend to have a more amicable relationship with your former spouse, collaborative law could work for you.
It’s hard to say right away whether it will work for any given couple, but if you aren’t dealing with a particularly ugly divorce characterized by emotional issues, contentious custody battles, or major disagreements over divorce related issues then you could be a prime candidate for collaborative law.
Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists, and today we’ll be discussing mediation.
Many couples facing the end of their marriage feel confused about how to resolve the many issues that come up. Well-meaning friends and relatives might recommend running to an aggressive lawyer who can help you battle out in court, but I want to use this video to tell you about different ways of solving your problems that can help everyone to feel that they were treated fairly and with respect.
You and your spouse have the ability to choose how you will go about reaching an agreement. Despite what you may have heard from sensational articles in the media or even through friends, most family disagreements in Australia end with a settlement. This means that most couples do not go to court to work out child custody issues, property division, or maintenance. They sit down together, sometimes with the help of professionals, and work through the problem.
Mediation is an alternative approach to resolving disagreements between couples. In Australia, it’s frequently used for figuring out property issues, and it’s also used for parenting disputes. Rather than going to court and have a judge determine how best to solve your problems, mediation allows you to control the process and the outcome.
So how does mediation work? A third neutral and objective person serves as a mediator whose role is to facilitate communication between you and your spouse to help you reach an agreement that you’re both comfortable with. The mediator helps you figure out what your interests are, what your actual needs are, and what is fair to everyone.
There are many benefits to mediation. One is that you’re involved in the process and the final decision. If you don’t like the way the process is going, you can say so and even leave the mediation. You’re in control. No judge makes a final ruling for you that you might not like. You have the right to accept or reject any agreement. Another benefit of mediation is that it gives you a lot of flexibility.
Together with the mediator and your partner, you set up times for meetings. This means you don’t have to miss work or find babysitters, or be controlled by court dates. The settings for mediation is also much more comfortable: usually in the mediator’s office and definitely not in a courtroom. Mediation is usually much shorter than going to court, limiting the time to weeks or just a few months.
When it comes to parenting issues, family dispute resolution, or FDR, is a very good option. This is a type of mediation that’s required by the courts when parents can’t come to an agreement on their own. These mediators are trained in the area of family disputes, and they usually have a background in law, social work, or psychology. They help couples figure out what’s best for their children. If you and your partner can work out a parenting plan on your own, that’s great. If you can’t, and you need to go to court to get a judge to decide, you first have to attend FDR and show the court you’ve both a good effort to resolve your problems.
I often recommend to clients to get legal advice when you’re in mediation, and I would recommend that you do have a lawyer. The lawyer’s role is to make sure you know your legal rights and obligations, and to help you understand the legal consequences of the decisions that you make in the mediation.
Sometimes lawyers actually attend the mediation sessions if both sides agree. It’s helpful to have a lawyer in mediation because sometimes there is a power imbalance between you and your spouse where one is stronger, or louder, or takes advantage of the other. Having a lawyer there can help balance the sides. But even if you don’t have a lawyer with you, you have the right to call your lawyer, or anyone else, to ask questions. Mediation agreements reached without each of you understanding your legal rights can result in failed negotiations or even broken agreements.
If you have more questions about mediation or family dispute resolution, or want to learn more about them, you can take a look at our other videos and at our website, or feel free to call me. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.
The Family Law Act provides for property division for both formerly married couples, as well as de facto couples. There are two main goals when it comes to property division. First, this should be a step towards finalizing the economic relationship between the parties. This “clean break” principal is supported by the requirement that courts make orders that will end the financial relationship of the parties as far as practicable. Second, this process recognizes contributions to property, both financial and non-financial.
An action for property division must be brought timely. For instance, if you were formerly married you must bring any property proceedings within 12 months of when your divorce order became absolute. Alternatively, if you were in a de facto relationship, you must seek property division prior to two years after the end of the relationship
The court maintains broad discretion when it comes to making property orders. For instance, should the parties disagree as to the ownership of property, the court has the discretion to make a declaration regarding the property in question.
Even the language in the Family Law Act speaks to this notion that the court has an abundance of discretion; the exact language expresses that the court may make “such order as it considers appropriate.” This broad discretion is subject to seven restrictions/considerations the court must contemplate. These considerations listed below are enumerated in the
Finally, the last bit of guidance that the Family Law Act offers to the court, is that the court shall not make an order unless the circumstances indicate that it is both just and equitable to make the order.
Because the Family Law Act fails to provide strict guidelines with regard to property division, and the courts are given such broad discretion, the courts have adopted a four-step process to apply to property orders. First, the court must identify and value the property, then consider contributions of the parties, then consider the factors listed above, and finally consider whether the order is just and equitable.
The court must identify and value a rather encompassing pool of property, which includes real property, assets, liabilities, financial resources, property presently possessed and property expected, as well as property disposed of. The court must also identify and value business interests, licenses, permits and professional qualifications, inheritances, insurance policies, among many other types of property. As you can see, the type of property is pretty much anything – the list is rather extensive.
Both the nature of the property as well as the value must be determined as of the date of the decision, rather than the date of separation or divorce. When determining the value of the property, the court will begin by considering the fair market value of the property. Fair market value generally refers to the amount that a willing (not anxious) purchaser who is adequately informed would pay a willing (not anxious) seller of the property. In some instances where there is a dispute as to the value of property, and the court cannot make a determination of the value, the court may order the property be sold.
Once the property has been identified and value, a simple formula is used to determine the net asset pool of the parties. The total assets minus the total liabilities will result in the net asset pool used by the court.
The court will consider financial contributions, non-financial contributions, contributions to the care and welfare of the family, and contributions in the capacity of homemaker or parent. Financial contributions are any monetary contribution related to acquisition, conservation, and improvement of the property and refers to contributions made before the marriage, during the marriage, and after separation. On the other hand, an example of a non-financial contribution would be where one party performs maintenance or renovations of any family asset.
Often, especially when considering long relationships, the court will make a determination that the parties contributed equally. However, each situation is unique, and may not call for a determination of equal contribution. The court can make necessary adjustments to account for your unique circumstances.
One situation that is given special attention with regard to contribution is violence. If violence during the marriage or relationship had an adverse impact on a party’s contributions to the marriage, the judge will consider this when assessing the respective contributions of the parties.
This step helps the courts in addressing the future needs of the parties. The court will consider all relevant factors, including but not limited to:
The last step in the property division scheme requires to court to ensure that the proposed order is both just and equitable. This step is intended to allow the court to take a step back from the proceedings, and a whole, determine if the order is appropriate. The order should only be finalised if it is fair for each party. What is fair for one couple may not be fair for another couple, and thus determining fairness is wholly dependent on the circumstances of each individual case.
Despite the objective of ending the economic ties between the parties, property orders may in fact be varied after they have been issued. Variations are only permissible under certain circumstances. The Family Law Act only allows for reconsideration of a property order where both parties have consented, or where one party makes an application and the court is satisfied that at least one of the following is applicable:
Should you be in a situation where you anticipate property division, the best thing for you and your former partner to do is to work through steps one through four before bringing property proceedings. This will often help you avoid having to go through litigation to arrange for your property division.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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 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:
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.