Q& A | Separation, Child Custody and Parenting

Q&A with Lisa Wagner, Principal and Managing Director, Doolan Wagner Family Lawyers.

 

Are you separating and want to know what’s best for your children?

Here are our trusted answers to some of the most commonly asked questions about separation and child custody.

 

Q: What’s the difference between a Parenting Plan and Parenting Orders?

A: A parenting plan is a written agreement that sets out parenting arrangements for your child(ren). These arrangements are usually determined by you and your former partner privately at a mediation or following some negotiation. If you and your former partner want to vary your Parenting Plan, you are able to do so at any time. However, it is important to note that a Parenting Plan is not a legally enforceable agreement and is not binding on parties.

Parenting Orders are arrangements that have been approved by the Court and as such are binding on both parties. Parties are able to vary the arrangements outlined in the Orders, provided both parties consent.   In the event there is disagreement regarding the Orders, you or your former partner can make an application to the Court seeking that the Orders be varied or set aside. There is a high threshold parties need to satisfy the Court in order to vary or set aside Orders.

 

Q: My partner and I have split up and I want to move interstate / overseas with my kids. And what about travel? Do I need my partner’s permission?

A: The short answer is yes.

There are laws in Australia regarding relocating with children. These laws apply even if there are no formal Court Orders that govern any agreement you and your former partner may have reached regarding parenting. Therefore, if you are seeking to move overseas or interstate with your children, this should be discussed and negotiated with your former partner. Moving overseas or interstate falls under the umbrella of “parental responsibility” as it is a major long-term decision that will impact your children. If there is no agreement, then you may be required to file a relocation Application in the Federal Circuit Court or Family Court.

Additionally, if you and your partner have separated it is best to ask for their permission to take your children interstate or overseas, even if it is only for a short holiday. Providing your partner with notice and an itinerary of travel will assist in reducing any fears your partner has that you may not return the children and is also a good co-parenting approach.

If you intend to relocate or travel with your children without the other parent’s permission, you should seek legal advice prior to doing so.

If your children are taken overseas or interstate without your consent, you should seek legal advice immediately.

 

Q: Can parenting orders be varied?

A: The Court is usually reluctant to vary parenting orders. However, in circumstances where both parties consent to the change or the Court determines it is appropriate to change the Orders, your final parenting orders can be varied.

In order for the Court to vary an existing parenting Order it must be satisfied that there has been a significant change in circumstances. Examples of what constitutes a significant change of circumstances may include one of the following:

  1. If either you or your former partner is seeking to relocate with your children;
  2. If the current Orders were made without all the relevant information having been made available to the Court prior to the making of those Orders;
  3. If you and your former partner have since consented to new parenting arrangements, such as entered into a parenting plan and the current Orders are no longer reflective of the actual arrangements for your children;
  4. If a substantial period of time has elapsed between the Orders being made and the Application being brought;
  5. If there has been allegations of abuse;
  6. If you or your former partner, or one of your children are of ill-health.

If one of the above circumstances applies to you, the Court will carefully consider what is in the best interest of your children prior to varying your parenting orders.

 

Q:  Do I still have to pay child support even though the kids are living with the other parent?

A:  Yes, you do. Whether or not the children live with you or the other parent, both of you are responsible for the financial support of your children. The amount that would be payable, however, is largely dependent upon the number of nights that the children spend with each parent, as well as the parents’ respective incomes.

With respect to meeting this obligation, you or the other parent can obtain an Administrative Assessment from Services Australia (formerly, the Child Support Agency) or alternatively, reach a private agreement amongst yourselves. Should you wish to document this agreement, a Child Support Agreement can be prepared which is registered with Services Australia and sometimes with the Court. Such an Agreement can include not only periodic child support, but also outline how you both will meet non-periodic payments (for example, in relation to the children’s extra-curricular activities, private health insurance, school fees and the like).

 

Q: Do I have a right to see my children?

A: In Australia, the short answer is that you do not have any right grounded in law to see your children. Family law in Australia, governed largely by the Family Law Act 1975 (Cth) (“the Act”) adopts a child-centric approach, focussing on the rights of your children and your responsibilities to your children as a parent rather than your rights as a parent. Your children have a right to enjoy a meaningful relationship with both of their parents. This will usually involve your children spending time with each parent, however there is no rule, presumption or “starting point” that your children will spend equal or “50:50” time with each of their parents. Furthermore, the paramount consideration of the Court in determining a parenting arrangement that is in the best interests of your children is to protect your children from harm or being subjected to or exposed to abuse, neglect or family violence. You have responsibilities for your children however you do not have a right to see or spend time with your children. Your children have a right to have a meaningful relationship with both of their parents if it is safe for them to do so and they will not be at risk of harm.

 

 

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  We have a dedicated team of experienced family lawyers prepared to handle your matter effectively and efficiently, providing reliable, direct and practical advice. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or email at enquiries@familylawyersdw.com.au  

 

 

About the Author: Lisa Wagner is Principal  and Managing Director of Doolan Wagner Family Lawyers.

Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: linkedin.com/in/lisawagnerdwfl

 

Disclaimer:

This post is only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us on (02) 9437 0010.

What you need to know about family therapy sessions if you are separated.

Parenting matters are often very stressful for all parties involved, children included. It is also an area that is fraught with complex emotional issues and can become increasingly complicated, particularly when the children begin entering into young adulthood.

The challenge in these sort of cases is to assist parents to recognise the need to support their children, whilst at the same time ensure that the children maintain a meaningful relationship with both parents, having regard to the paramount considerations outlined in Section 60CC of the Family Law Act 1975.

In some parenting matters, it is not unusual for one or more than one child to resist contact with one of their parents. The reason for the resistance can sometimes be nuanced and challenging for the Court to respond to. Whilst the Court can make any Orders it feels is in the child(ren)’s best interest, it is futile to make such Orders without first understanding (and dealing with) the emotional issues and/or trauma the child or children may have. In those instances, it is in the parties’ interest that they and/or the children consider attending family therapy.

In the event the parties do undertake family therapy in the context of separation, the next question is whether that therapy will be reportable or non-reportable.

 

So what does reportable family therapy and non-reportable family therapy mean in the context of family breakdown?

 

As the name suggests, reportable family therapy is where the family therapist will report to the Court as to the progress of the therapy. In some cases, a Court will direct families to engage in family therapy where the parties are made aware, at the outset, that the therapist will be called on to provide evidence to the Court. They may also be required to outline the parties’ progress with family therapy.

In some other circumstances, the Court may order parties or the child(ren) to participate in non-reportable family therapy. This means that the parties and the children attend upon a therapist in a completely confidential setting, without the fear that any information disclosed at those sessions will be disclosed at some point in the Court matter.

 

When and how is family therapy accessed?

Whilst there is no set rule as to when family therapy should be considered, it is often best introduced relatively early in any famiy law matter. Insodoing it allows underlying and important issues to be therapeutically addressed and possibly resolved or narrowed as quickly as possible, and without the need for unnecessary and often blunt Court intervention.

Although, it should be noted that parties can begin family therapy at any stage in the matter, and indeed, it is often encouraged by the Court.

 

What are the advantages and disadvantages of reportable family therapy?

There are clear advantages and disadvantages with respect to engaging in family therapy which is reportable to the Court, as follows:

 

Advantages:

  1. If an Independent Children’s Lawyer is appointed, they would be able to speak with the family therapist on a regular basis to discuss ongoing issues and challenges, the progress of family therapy, and whether there are any matters or concerns the Court should be made aware of.

 

  1. Following on from the above, should the Court become aware of any issues which arise in family therapy, it is able to make Orders which deal with this issue. For example, if one party has anger management issues, then the Court could order a party to enrol and participate in an anger management course to address this challenge.

 

  1. In the event that a Court orders a Family Report to be conducted in a matter, then the expert appointed to prepare the report would be able to speak with the family therapist and better understand the complexities of the issues in dispute.

 

  1. The family therapist would likely have access to Court material, which would allow them to be better informed of both parties’ allegations. Meaning, they would not be limited to only one party’s account. This can overcome problems that can arise should a “complete picture” not be available. For example, in the case of Maher & Mills (2015), it was found that the family therapist involved was providing the child with counterproductive counselling as he was accepting unconfirmed allegations of sexual abuse from only the mother. Eventually, his evidence was found to be inadmissible as he had “lost professional impartiality” in accepting the mother’s evidence unquestioningly.

 

Disadvantages:

 

  1. Some parties may feel apprehensive or appear to be disinterested in the process, especially in circumstances where the Court may become aware of the issues addressed during family therapy. As a result, parties may be less receptive to opening up to the therapist and meaningfully engaging in the therapy. Alternatively, parties may also be deliberately selective in what they say to the therapist as they know it may contradict what was said to the Court.

 

  1. When children (who are often significantly affected by parental separation) meet with a therapist, it is often a very delicate and fragile relationship. So when a practitioner reports on matters discussed with that child, it may damage their relationship, which might prevent any real progress from developing in the future.

 

 

What are the advantages and disadvantages of non-reportable family therapy?

 

Similarly, there are advantages and disadvantages of engaging in non-reportable family therapy. They include:

 

Advantages:

 

  1. By ensuring that the family therapy is completely confidential, it allows the parties (and the children) to feel as though they are in a safe space to discuss the issues in dispute, and in some cases, to allow a party to confront and accept any damage, they may have inflicted (whether consciously or unconsciously).

 

  1. Non-reportable family therapy ensures that the important relationship between the practitioner and the party is protected as it avoids the risk that parties (and more importantly, children) may feel betrayed by a practitioner disclosing private information to the Courts. In the case of Hastings & March (2019), the trial Judge was asked to determine whether to permit into evidence the Subpoena material of a family therapist who had been treating the children for a number of years. The judge had serious concerns about the “potential damage to the therapeutic relationship” between the children and the therapist and as such upheld the objection and did not allow the material into evidence.

 

 

Disadvantages:

 

  1. The Court (and if applicable the Independent Children’s Lawyer) would be unable to discuss family therapy with the practitioner. This also includes an expert who has been appointed to prepare a family report, which means that the report could potentially not contain crucial information that would be relevant for the Judge to make a determination.

 

  1. The family therapist may not be provided with all the necessary and relevant information in order to provide an effective therapeutic service, and in turn, his or her involvement with the family may actually be more harmful than beneficial.

 

 

In conclusion, whether family therapy is reportable or non-reportable, it is evident that any additional assistance by an experienced family therapist would be a vital resource for families undergoing separation. However, parties should carefully consider at the outset, if possible, whether any family therapy that is appropriate for them (and their children) to participate in, should be reportable or non-reportable.

 

About the Authors:

Lisa Wagner is Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

Connect with Lisa on LinkedIn: Lisa Wagner

 

Anthony Saba is a Family Lawyer at Doolan Wagner Family Lawyers. Anthony has worked for the past five years exclusively in family law in two other specialist CBD family law firms before joining Doolan Wagner Family Lawyers. He has experience in many other areas of law including commercial disputes, criminal matters and care and protection work.  Anthony has acted in complex property matters and parenting matters including difficult relocation matters and in matters where domestic violence has factored heavily. Anthony is currently completing his Masters in Family Law.

 

Disclaimer: These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.