The relevant authorities set out some of the applicable principles as follows:
The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied. The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. In applying these considerations, the Court gives greater weight to the consideration set out in s 60CC(2)(b). Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. In Mulvany & Lane [2009] FamCAFC 76; (2009) FLC 93-404, May and Thackray JJ stated: It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests. It needs also to be remembered that the importance of each S 60CC factor will vary from case to case.. In Bilz & Breugelman [2013] FamCA 578, Austin J in an examination of the relevant authorities set out some of the applicable principles as follows: Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent. The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory. Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider the evidence as to any greater effect of the decision upon the resident rather than non-resident parent, but that does not mean the convenience of the non-resident parent is ignored. While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school. There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential. There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind Additional considerations such as the following are relevant:(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. (b) The nature of the child’s relationship with each of the parents and other persons. (c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child. (ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. (d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living (e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. (f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant. (h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right. (i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. (j) Any family violence involving the child or a member of the child’s family. (k) Any relevant inferences that can be drawn from a family violence order, if it applies (l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (m) Any other fact or circumstance that the court thinks is relevant. The Court must consider all of the relevant s 60CC matters as well as the affidavit evidence of the parties and their submissions when making a decision on the school the child should attend. Need help? 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Child Relocation and Parenting Orders
In most relocation matters a parent will seek to move to a location that would make it difficult for the child to spend time with the other parent. Wherever the child lives the Court will endeavour to ensure that the child should spend reasonable time with the other parent. Consideration of Best Interests of the Child The Court must consider the current, and prospective arrangements for the child and whether they would be in the child’s best interests. Competing with this concept is the separation of the child from his primary carer. Where a child “has been in the primary care of a parent (normally the mother) since his birth, that he has a meaningful relationship with that parent, and that it is in his best interests for that relationship to continue” After finding that an order for equal shared parental responsibility was appropriate, (i.e., that the parents have an equal say in the major aspects of a child’s life) the Court must turn its attention to the question of the parents having equal time with a child and if that was not appropriate because of distance as in most relocation matters then what time would be in the child’s best interests. The task before the Court is to determine what parenting orders were in the child’s best interests. It is not to determine where the parent was “permitted” to live. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the Court. It is probably only in the circumstance of the significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry. Exploring Alternatives to Restricting Freedom of Movement Alternatives to restricting freedom of movement by one parent should be explored by the Court. An order restricting the freedom of movement of the custodial parent should be made only if the welfare of the child clearly indicates that the other parent should have, instead of regular weekly access, rather less frequent but longer periods of access. As children grow older there can be advantages in the latter form of access. Where the children have been in regular contact with the other parent, it is desirable in the interests of the children that they maintain their relationship with such parent. However, when alternatives are considered, there is no preponderance in favor of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access, e.g. 3 or 4 visits each year and for longer periods of time during the children’s school vacations. The Family Court is obliged to give careful consideration to the proposed arrangements of the parties … But the Court is not bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests. Commentary on 68F(2)Wishes of children 68F(2) [What court must consider] The court must consider:
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. Importantly, a party’s “fall-back” or “back-up” position is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it was a primary proposal. Need Legal Help?If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find family lawyers Brisbane on Google Maps near you. You may also like to learn more about:
Consent Orders in Family Law Matters – Australia
According to the information provided by Adam Cooper in a paper he has delivered. Consent orders are a very useful means of obtaining orders from the Family Court in regard to property and children’s matters. Consent orders carry many advantages, including the exemption in property matters for roll-over stamp duty and capital gains tax. being an economical and less invasive means of resolution, an ability to divide superannuation interests between the parties, the potential for one party to be indemnified in relation to liabilities incurred during the relationship, and excluding the parties from coming back and seeking a larger slice of the net matrimonial assets. Consent orders are a very cost-effective way of resolving matters after a breakdown in a matrimonial relationship. Consent orders apply to marriages as well as de facto and same-sex relationships. There are a number of matters which must be included in consent orders such as:
The Court issuing the consent orders must have the jurisdiction to make the orders. The Family Court does have accrued jurisdictional powers whereas the Federal Circuit Court, which is part of the Family Court complex, is entirely a creation of statute. Consent orders are made by the Family Court and must be drafted to enable that court to make the orders. Again, care should be taken in making consent orders in relation to children. Certain orders relating to the financial support of the children do not fall within the jurisdiction of the Family Court and the Family Court has no power to make such orders when drafted into consent orders. The Child Support Agency is the only agency able to make maintenance orders in regard to children. Even orders which are related to the schooling of the children and who is to pay the school fees would come within child maintenance and would not fall within the jurisdiction of the Family Court. Care must be taken therefore in drafting these sorts of orders. Care should also be taken when drafting certain orders which relate to the transfer of realty. For example, the Family Court does have powers to make orders obliging the parties to do certain things and sign certain documents for the sale of property outside of Australia. The obligations fall directly on the parties. However, the property may be in a country which would not allow these orders to take place. Although the court has powers to make the orders, there may be in certain instances, an outcome whereby the orders cannot be carried out. The Family Court has powers to make consent orders in regard to undertakings. An undertaking is a specific obligation for a party to do, or not to do something. Generally, the purpose of an undertaking is to oblige a party to undertake to do certain things in circumstances where the court may not have the power to make orders or in circumstances where the party seeks to avoid an order being made. An undertaking is not enforceable against the giver of the undertaking until it has been accepted by the Court. Like orders, an undertaking must establish an express obligation on the giver of the undertaking. Superannuation is considered as property in family law matters. The Court has powers to order the ‘splitting’ of A party’s superannuation interest, thereby allowing the other party to gain an interest in the superannuation fund of the other party. In drafting parenting orders, there are three critical categories that need to be considered:
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For more information, please visit our website: Consent orders AFFECTS ON PARENTING OF CHILDREN
On 26 March 2020, the Chief Justice of the Family Court issued a Statement on Parenting Orders and the affects of COVID-19. The Chief Justice’s statement provided guidance on the listing of matters in the Family Court. It was issued for the purpose of guidance in legal cases and was not a legal principle. It included the following: Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives. Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times. The purpose of this statement is to clarify that the Courts remain open to assist parties and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.
These principles still apply. The welfare of children is the paramount consideration. We now have the added threat of a flu epidemic. It is my view that the stated principles of the Chief Justice are just as relevant now as when they were stated by the Chief Justice. Need Legal Help? If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced and Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
For more information, please visit our website: AFFECTS ON PARENTING Independent Children’s Lawyer (ICL)So your parenting matter is in Court and the Judge has made an Order for an Independent Children’s Lawyer to be appointed in your matter.
What is an Independent Children’s Lawyer (ICL) and why has this Order been made? Independent Children’s Lawyers, more commonly referred to as ICL’s are independent separate legal representatives who act on behalf of the child or children who are the subject of the Court proceedings and ensure the best interests of the child or children remain paramount. They are typically appointed in serious family law matters where allegations such as family violence, child abuse, child neglect, a high level of parental conflict or alienation has been raised. The Court has the power to appoint an ICL under section 68L of the Family Law Act 1975. ICL’s are generally funded by Legal Aid, but in some circumstances, parents may be required to financially contribute to the cost of an ICL if they have the income and financial capacity to do so. So what exactly does an Independent Children’s Lawyer ICL do? They gather information, coordinate reports, attend mediation and make recommendations to the Court as to what parenting arrangements would be in the best interests of the child or children involved in the litigation. On a practical level, this means they issue subpoenas, make arrangements for family reports and/or psychiatric assessments, consider any expert evidence, and attend any family dispute resolution conferences to ensure the children’s interests are protected and advanced as well as advocating for the children at a final hearing. ICL’s are usually highly experienced and well-respected family law practitioners. Given their role is to advocate on behalf of children who do not otherwise have a voice in family law proceedings, their views are regarded seriously by the Court and the Court is heavily persuaded by the opinions expressed by the ICL. If an ICL has been appointed in your Court proceedings, contact the Brisbane Family lawyer team at James Noble Law today for a free no-obligation 20-minute consultation to discuss your particular situation and the role of an ICL further. To schedule an appointment with one of our Qualified and experienced and Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
For more information, please visit our website: Independent Children’s Lawyer Traveling with a child overseas is usually a decision for both parents to make, if they share parental responsibility for the child or if there are Court Orders in place.
Both parents are typically required to sign Passport Applications for their children. Parents should attempt to reach an agreement amicably about such travel decisions and consider attending family dispute resolution in the event that a disagreement arises. Studies have shown that international travel and exposure to different cultures, people, and cuisine can make for an excellent learning experience for children. It is therefore understandable why many parents wish to share this experience with their children. It is recommended that parents consider the following matters when deciding whether or not to consent to their child traveling overseas with the other parent:
Perhaps the most important consideration for international travel is the proposed destination and whether it is a signatory to the International Hague Convention on the Civil Aspects of International Child Abduction. This Convention is the primary international agreement between various countries that relates to child abduction abroad. The Convention provides an international process whereby a parent can seek to have their child returned to their home country in circumstances where the other parent is unwilling to return and is withholding the child in the foreign country. Australia is a signatory to the Convention and offers such protection. Many parenting Orders will therefore only allow parents to travel internationally to destinations where the countries are signatories. More often than not parents are usually on the same page about international travel for their children. However, difficulties can arise when one parent wishes to travel internationally and the other parent is not willing to provide their consent. In these circumstances, an Application to the Federal Circuit and Family Court of Australia will need to be made. This is after some form of family dispute resolution has been attended and the required Section 60i Certificate has been obtained, unless there is a relevant exemption which applies such as circumstances of urgency (i.e. if the proposed travel is to occur within a very short period of time). After commencing such Court proceedings, you can make an application for your children’s name to be placed on the Airport Watch List which is monitored by the Australian Federal Police. This means that the children will be unable to board any aircraft and be removed from the jurisdiction of Australia. | For more information, please visit the main article source - Can I Take Child Overseas Without Telling My Partner? | If you are considering traveling overseas with your children and the other parent has objected to the same, contact the Brisbane family lawyer team at James Noble Law today for a free 20-minute consultation to discuss your rights, options, and legal avenues available to you to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the Child Support Act and Family Law
Child Support Act, It is commonly recognized that both parents have a financial obligation to contribute towards the cost of raising their child. The national Child Support Agency under Services Australia is responsible for delivering the child support scheme in addition to regulating, collecting, and administering child support services. They are your first point of call for any child support queries you may have. In Australia, the relevant child support legislation is encapsulated in the following Acts:
This depends on a number of variables, such as:
So what does child support actually cover? Child support is to cover expenses related to raising the child such as:
There are avenues to review and appeal a decision as to child support as made by the Child Support Agency. Firstly, an internal review is conducted. If the dispute is not then resolved, the matter can progress to the Administrative Appeals Tribunal (also known as the AAT) to make a final decision. Parents can also chose to enter into a child support agreement being a private document that sets out how their child support is to be paid, how much is to be paid and what it is to cover. There are 2 options for such child support agreements, either a Limited Child Support Agreement or a Binding Child Support Agreement. Parents will commonly enter into these documents to cover additional expenses associated with raising a child such as:
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For more information, please visit our website: Child Support Act Changing a child’s surname post-separation is a common occurrence in family law. The process is relatively straightforward if both parents agree. However, it becomes complicated when one parent wishes to change a child’s surname post-separation and the other parent opposes such change. In parenting matters, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility in relation to major long-term issues concerning the child. Under section 4 of the Family Law Act 1975(Cth), changing a child’s name is considered a major long-term issue in relation to the care, welfare, and development of the child. This means that parents must consult with each other before making a decision to change a child’s name. Sole parental responsibility The presumption of equal shared parental responsibility does not apply if a parent of the child has engaged in abuse of the child or family violence. The Family Court decision of Reagan & Orton [2016] considered whether a mother could hyphenate the child’s surname without the father’s consent in circumstances where she had sole parental responsibility. Despite not being required under the existing Orders to consult with the father in relation to changing the child’s name, the Births, Deaths and Marriages Registration Act 2003 (Qld) requires both parents to apply to change a child’s name unless:
Reagan & Orton [2016] Fam CA 330 The Court identified a number of relevant factors in determining whether a change to a child’s surname is in the child’s best interests, including:
For more information, please visit the main article source - Can You Change Your Child’s Surname If you are considering changing your child’s name in QLD (Queensland), then contact the team at James Noble Law today for a free, no-obligation 20-minute consultation today to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Critical Incident List
The Federal Circuit Court and Family Court of Australia implemented a new Court process referred to as the ‘Critical Incident List’ as of Monday 6 June 2022 which was rolled out in all states and territories excluding Western Australia. The Critical Incident List aims to expedite the Court process for vulnerable families that need to make urgent arrangements for children where no parent is available due to circumstances such as death (including homicide or suicide), critical injury or incarceration (due to family violence). The Critical Incident List will be managed nationally by Justice Jacoba Brasch and will ensure eligible families are prioritized within the Court system to receive urgent Court Orders regarding living arrangements and parental responsibility in circumstances where the family is experiencing some crisis. The Court will offer support and certainty to extended family members who find themselves in difficult situations where they are caring for another person’s child during an emergency situation. To be eligible for inclusion in the Critical Incident List, the Applicant must establish:
If the Application is denied inclusion in the Critical Incident List the matter will be referred to a Registrar for duty listing or a directions hearing or a Judge for hearing in the normal procedure. If your family is experiencing a crisis and you wish to discuss whether your parenting matter may be eligible for inclusion on the Critical Incident Lists contact the Brisbane Family lawyers team at James Noble Law today for a free no-obligation 20-minute consultation today. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
For more information, please visit our website: Critical Incident List Law of “Sperm donation Brisbane“, Parental Responsibilities and Legislation
Although Sperm donation Brisbane have historically been subject to anonymity in Australia, recent legislative reform and case law suggest a definitive movement towards inclusion within Family Law and Parental Responsibility. In all states and territories of Australia, donating sperm anonymously is now banned through legislation or mandatory guidelines. Whilst cases involving sperm donors are quite infrequent, the importance to both the Child Support Assessment Act and the Family Law Act is significant. Does a sperm donor have parental rights or liabilities in Australia? Section 13 and 18 of the Status of Children Act 1978 (Qld) provides sperm donors have no rights or liabilities in respect to the use of the semen, and, the child born as a result of artificial insemination. However, contentions have arisen as a result of the relationship this legislation has with the Family Law Act 1975 (Cth) (FLA). Additionally, whether a donor will be found to be a ‘liable parent’ under the Child Support (Assessment) Act 1989 (Cth) will be dependent upon case law. The principles of parental responsibility under the FLA state that a child has the right to know and be cared for by both parents. Accordingly, if a sperm donor is considered to be a “parent”, the responsibilities of both providing financial support and having a meaningful relationship will be imposed on persons donating sperm. Sperm donation Brisbane Law: Is a sperm donor a legal parent in Australia? As there is a clear inconsistency between State and Commonwealth Law, section 109 of the Commonwealth Constitution 1990 (Cth) provides the Commonwealth Law will take precedence. Section 5 of the Child Support (Assessment) Act 1989 provides a person will only be liable to pay an assessment if found to be a “parent” under the relevant definition. As the relevant definition refers to the meaning of parent under section 60H(3) of the FLA, a sperm donor will not be a “parent” in the event a specific State law expressly confers this status upon a sperm donor. Is a sperm donor considered as a father or legal parent ?Consequently, as no State laws exist in Queensland, sperm donors will not be considered “parents” for the purpose of paying child support. This conclusion was affirmed by the Court in B v J (1996) and W v G (1996). That being said, it is important to note that an application for child maintenance may still be brought against the sperm donor, as these assessments are not concerned with “parents”, rather “respondents”. Is a sperm donor liable for child support? Do I have to pay child support if I donate sperm? Although a sperm donor may not be liable to pay child support, the person may still be entitled to be apart of the child’s life, as the Court is likely to emphasize the best interests of the child over any other consideration. Accordingly, in the case of Patrick (2003) and Mark (2004), the Court found the biological father (sperm donor) was entitled to spend time with the child, despite the Mother’s wish for this arrangement to not occur. In conclusion, the legal ramifications of donating sperm have become significantly more relevant in modern society. If you have concerns regarding your rights to donating sperm or artificial insemination, seek legal advice at James Noble Law today. For more information, please visit the main article source: Sperm Donation Australia |
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