Thinking of separating? Why you should see a family lawyer early

When you separate, you will likely receive advice from family, friends and colleagues – whether you have asked for that advice or not.  People will tell you what you should or should not be doing, ranging from opening a new bank account to parenting your children.

Often, this advice comes from a place of love and support.  Where the advice delves into legal matters, there is a risk that the information you receive is generic and not actually applicable to your specific situation.

Your former partner may have views about how your separation should work and how you should each approach the next stages of dividing finances or working out the children’s arrangements.  For example, your former partner may say to you something along the lines of “let’s work it out between us and not get lawyers involved”.  They may propose that you divide everything equally, or that the children should live with you in a week-about arrangement because it is “only fair”.  

Whilst it is beneficial to remain amicable and co-operate with your former partner upon separating (if you can and if it is safe), this does not always mean that they are looking out for your best interests.  Sometimes, an outcome which seems ‘fair’ might actually be completely inappropriate for your children depending on their age and specific needs, or it might leave you financially disadvantaged if you do not understand your legal rights and entitlements.

It is not unusual for us to see individuals who have been told not to see a lawyer; and for them to subsequently find out that their former partner has actually seen a lawyer themselves.

At the initial stages of a separation, or even if you are contemplating whether to separate from your partner, you should enter the ‘information gathering’ phase.  This includes finding out what assets, liabilities, superannuation and financial resources you and your former partner have.  You should also think about what specific needs your children have and whether you can each respond to those needs.  Seemingly innocent requests can sometimes leave you in a difficult situation, for example with respect to who moves out of the home or how you meet ongoing expenses.

Seeing a lawyer, even for a one-off meeting, can be helpful to better understand your rights and obligations when separating. A lawyer can advise you about the information you are entitled to and what you should be considering when you are negotiating a property settlement or parenting arrangements. A specialist family lawyer can also advise you about how the Courts approach a property settlement or parenting arrangements, which can inform any agreement you ultimately reach.

Importantly, seeing a lawyer does not mean that you are bound to engage that lawyer on an ongoing basis or that you are going to go to Court. There are many alternatives to Court and it should usually be a last resort. Mediation is compulsory before going to Court in many instances, including in parenting matters (where there is not urgency or safety concerns).  

If you are at the initial stages of separation, or if you are contemplating your next steps prior to separating, we recommend seeing a specialist family lawyer to understand more about the process, your rights, entitlements and obligations. All information is kept confidential and your lawyer will advise you about recommended next steps. To arrange an appointment with one of our experienced family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.

Sorting out the children’s care arrangements

If you have separated from your partner and you share children together, life will (of course) be different. This is especially so if you are no longer residing in the same property. Where you have moved out, or your spouse has, it is important to establish arrangements for care of the children as early as possible.

In discussing the children’s care arrangements, you can decide whether you will implement an ‘interim’ arrangement (say for a few weeks, months or even a year), or you may already have a good idea about what your ‘final’ arrangements might look like (i.e. until the children turn 18).

Generally, you and your former spouse should agree as to any care arrangements together rather than one parent unilaterally imposing the arrangements on the other parent.

To formalise any agreement reached:

1. parents can enter into a ‘parenting plan’ which can be as simple as writing down your arrangements on a piece of paper, then signing and dating the document; or

2. you might also decide to formalise the arrangements in consent orders that the Court approves and ‘stamps’, however this is generally only done when you have agreement about final arrangements.

If you do not reach agreement, you may wish to engage a mediator, who is an independent third party who can assist you in finding an outcome that is mutually suitable (even if you do not consider it to be your best-case scenario).

Important things to think about when you are considering entering into a parenting plan include:

1. What will the arrangements look like during the school term;

2. Will the arrangements change during the school holidays, and what will you do over the longer Christmas/summer school holiday period;

3. Will there be set times for the children to communicate with the other parent;

4. How will you share special occasions, such as religious holidays and birthdays;

5. Which special occasions are important to celebrate - either for you or the other parent;

6. Are there any ground rules you want to establish for travel, whether that be domestic travel or international travel;

7. How will you share important information, such as the details about children’s health or medical treatment;

8. How you and the other parent will communicate, i.e. by email, text, Whatsapp or via parenting communication app.

Before negotiating care arrangements, you should also consider where you will both be residing and your working arrangements, including whether either parent has access to flexible working arrangements.

Ultimately, in deciding which arrangements you put in place for the children, you should think about whether those arrangements will work for the children. This in turn will influence whether the arrangements are in the ‘best interests’ of the children. Whilst some parents consider that an ‘equal time’ or 50/50 arrangement is ‘fair’, this is not always appropriate particularly where the children are young and have an established primary carer. You should also consider the children’s typical routine and whether the children can maintain this routine with the proposed arrangements.

If you are thinking about discussing care arrangements for the children, or if you are concerned that the care arrangements are not working, you should seek advice from a specialist family lawyer. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Parents vs Grandparents vs Carers: Who Does the Court Prioritise in a Parenting Dispute?

In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:

1. The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their parents; and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.

The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.

An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:

1. The aunt of the subject child is granted sole parental responsibility.  

2. The child to live primarily with the aunt.

3. The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.   

Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.

Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.  

While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Who can apply to the Court for parenting orders?

Someone other than a parent of a child may bring an application seeking parenting orders in relation to a child. It is not uncommon for a child to be cared for by a person other than one of their parents, such as a grandparent, sibling, relative, or family friend. The Family Law Act recognizes that children can be raised outside of traditional familial relationships.

Under 65C of the Family Law Act, any of the following people can bring an application to the Court seeking parenting orders:

1. Parents;

2. The child;

3. Grandparents; or

4. A person concerned with the care welfare and development of a child.

The first three categories are self-explanatory, however, the third requires the Court to make a decision about whether the person bringing the application meets a particular threshold, being whether they are a person concerned with the care, welfare, and development of a child.

There are no set criteria that the Court uses to determine who is a person concerned with the care, welfare, and development of a child. In one case, a step-parent or an aunt or uncle may be declared to have leave to bring an application, in other cases, a great-grandparent’s application to bring proceedings has been refused. Each case will depend on the set of facts before the Court at the time, and the strength of the persons’ concern with the care and welfare of the child. For example, the Court is more likely to declare that a person is concerned with the care, welfare, and development of a child if they have been the primary carer of the child, or spent significant time with them throughout their lives, or if they have brought the application due to concerns about the risk of harm to a child.

Although parents and grandparents already have standing to bring an application for a parenting order, the case law confirms that there is no “hierarchy of applicant”. This means that an application brought by a parent or grandparent, will not be considered with any greater weight or priority than an application brought by someone concerned with the care, welfare, and development of a child. The Court must consider each application with regard to the legislative framework, in particular, with the best interests of the child as the paramount consideration. Any person seeking that the Court make parenting orders must have a proper basis to bring the application, irrespective of what their relationship is to the child the subject of the proceedings.

It is important to seek specialized advice from a family law solicitor about whether you have the standing to bring an application seeking parenting orders, and to obtain general advice in relation to your family law matter.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Margot McCabe