Planning a holiday for yourself and your kids can be fun and exciting – but it can also be illegal if you haven’t obtained the consent of your ex-partner.

Whether it’s a quick long weekend getaway to Bali or an entire summer in Europe, legally you cannot take your children out of the State without consent of the other parent. If there are proceedings in the Family Court, it would constitute an offence under the Family Law Act and you risk being stopped by immigration at the airport and denied permission to board flights, and in rare cases, imprisonment.

Obtaining Consent

Of course, family law disputes aren’t always simple. Your ex-partner might choose to unreasonably withhold consent, they might not be contactable, or there might be urgent circumstances that necessitate the travel. In these circumstances you can apply to the Court for permission to take your children overseas. Applying to the Court for permission to travel can take time. You should always consult a lawyer and plan ahead when making international travel plans whilst Family Court proceedings are on foot.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

Whether we like it or not, social media plays a major part in our daily lives. Facebook and Instagram can be useful tools for communicating with your ex or sharing photos of your children. However, if you have ongoing proceedings in the Family Court then you should always be aware that what you share online can make its way into the courtroom and this can have disastrous consequences.

When can my social media presence damage my own case?

Parenting Matters

It is an offence to identify parties to a family law case. Remember those drunken photos you posted to Instagram while you were out with your friends on Friday night? Or the angry status you posted on Facebook after you found out that your ex cheated on you? Or that story you posted on Snapchat where you ranted about the recent court hearing in your matter?

These posts might not be so bad in context, but once they’re annexed to an affidavit and presented to the court, they can be seen as a breach of the confidentially rules and evidence of your character and capacity to parent, no matter how #SorryNotSorry you are.

Financial Matters

Doing something as simple as updating your LinkedIn with your new job or posting a picture of your new #TreatYourself purchase can be hazardous if you post it before first disclosing it to your ex!

How do I use social media responsibly during a family law dispute?

  1. Respect the rules of confidentiality and don’t identify parties to a case.
  2. Think before you click – don’t use social media to blow off steam or comment on Court proceedings. Better yet, consider staying off social media until your matter is resolved.
  3. When in doubt, don’t – if you think there’s even the smallest chance that a post could be misinterpreted and land you in hot water with your ex or the Court, then don’t post it.
  4. Update your privacy settings – whether you’re an Instagram influencer or an infrequent Facebooker, it is always best to try and minimise your presence during Family Court proceedings.

Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.

There are two main ways to get child support:

  1. You can enter into a binding child support agreement with your former partner; or
  2. You can get a child support assessment from the Department of Human Services.

Binding Child Support Agreements

Much like Binding Financial Agreements, Binding Child Support Agreements (BCSA) are private agreements between you and your former partner.

While the payment can be any amount, a written agreement needs to be drawn up. Both parties need to get independent legal advice about the proposed agreement. The BCSA must also be registered with the Department of Human Services. In order to be legally binding, it must also be filed at the Family Court.

Child Support Assessments

You can apply for a child support assessment online. The Department of Human Services will decide how much child support you should receive. Their assessment depends on a number of factors, including your combined income and the extent to which you have care of your child.

If you would like more information about your options, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au to arrange an initial appointment.

On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.

  1. The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
  2. NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
  3. Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
  4. Biology is but one fact, sometimes a very important fact – but it is not the only fact.
  5. In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
  6. The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
  7. It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
  8. Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
  9. Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.

In a landmark case regarding parenting rights, the judgment in Masson v. Parsons & Ors (S6/2019) was handed down on 19 June 2019 ruling in favour of the biological father who had donated his sperm. The High Court decision was made following the mother’s decision to move to New Zealand with their biological child.

ABC news reports that the decision overturns an appeal the girl’s mother and her wife won and reaffirms an earlier ruling ordering they remain in Australia as well as consult him on major parenting decisions.

The High Court of Australia will hear the matter of Parsons and Anor & Masson mid-2019. Interest in the case has focused on whether a biological father (sometimes referred to as a ‘sperm donor’) is a “legal parent”. Hopes that the High Court may decide in favour of the biological father (and by extension many other biological fathers) may be misplaced. The issue before the High Court is framed within the context of the Family Law act 1975 which many legal experts suggest would not permit a such a conclusion. However, anything is possible from the High Court, but most commentators are cautious. However, it is open to the High Court to suggest that legislative change is required. Then it is a matter for parliament to decide.

children

We’ve separated. Will I ever see my Children again?

childrenOf course you will. Only in very rare circumstances will the Court prohibit all contact with a parent. It’s important to realise that the circumstances in which you see your Children after separation are likely to be different than during your relationship.

We’ve separated. How do we resolve disagreements about time with the Children?

The good news is that many separating couples, with a little help from mediators or lawyers, parties soon reach agreement on issues surrounding the time the Children spend with both parents and related issues such education, health and travel. We can provide you with a range of options from informal settlement, parenting plans, mediation and as a last resort only- litigation.

What does “Best interests” of the Children mean?

The phrase ‘best interests’ of children is widely used but commonly misunderstood. In very general terms the ‘Best Interests’ of the Child is the main (or paramount) consideration of the Court when making orders about a Child. In plain terms, where separated parents ask for different orders from the Court (for example if Dad wishes to send the Child to public school and mum wishes to send the Child to private school) the main question the Court will ask is: “Is it in the Child’s best interest to go to Public School or private school?” Many parents assume that because their proposal has the Child’s best interests at heart that their proposal is automatically in the Child’s best interests. In the case of private vs public school quoted above Dad may assume that because he went to public school and had a successful career there is no need to send the Child to private school. Mum may say that as the Child is not academically gifted and will benefit from lower student/teacher ratios, the Child should go to private school. Both parents have the Child’s best interests at heart but that does not mean the Court will necessarily agree. The Court could conclude that the parties cannot really afford private school and it is not in the Child’s best interests that the parents limited financial resources be spent on private education. Alternatively, the Court could conclude that because of learning difficulties or because of better opportunities it is in the Child’s best interests to attend private school.

How does the Family Court decide what is in a Child’s Best Interests?

In legal terms this involves a very detailed and at times complex assessment of the law. A significant part of the Court’s decision will involve an assessment of section 60CC (for married couples) of the Family Law Act 1975. Among the issues to be considered are:

  • The benefit to the Child of having a meaningful relationship with both parents versus the need to protect the Child from physical or psychological harm from being subjected to or exposed to abuse, neglect or Family Violence.
  • The views of the child.
  • The nature of the child’s relationship with both parents and other persons in the Child’s life (including Grandparents).
  • The Extent to which both parents have (or have failed) to be involved in the Child’s life.
  • Whether each parent has fulfilled their obligations as a parent.
  • The likely effect on the Child of any changes in the Child’s circumstances
  • Practical issues re contact.
  • The capacity of both parents to provide for the Child’s emotional and intellectual needs.
  • Cultural issues.
  • Family Violence.

Am I automatically entitled to Shared Care?

No. Whilst it is fair to say that shared care orders have significantly increased from say 10 years ago there is no automatic right to shared care. The key issue is whether shared care is in the Child’s best interests. Factors that increase the likelihood of shared care being ordered include:

  • Whether shared care is ‘practicable’. Can separated parents demonstrate a “child focused” approach. In plain terms this means whether the parents can consistently put aside any personal issues between them so as to focus solely on the Child’s needs. Shared care can involve numerous pickups and drop offs, schooling, sporting activities, birthday parties, extra-curricular events and much more. To make shared care work both parents have to be seen to be willing and able to make it work.
  • Whether shared care is ‘practical’. This may involve issues such as the age of the Child and her/his needs, parents work commitments, financial costs, suitable accommodation, schools, child care and family support.
  • The absence of domestic violence.
  • Neither parent represents a physical, or psychological risk of harm to the Child.

What does ‘Equal Shared Parental Responsibility’ mean?

Equal Shared Parental Responsibility (“ESPR”) has nothing to do with the amount of time each parent spends with a Child. However, ESPR has everything to do with who makes the major decisions in a Child’s life. Some of these decisions include:

  • The Child’s name.
  • The Child’s religion (if relevant).
  • Who the Child lives with.
  • Education.
  • Medical issues.

If the presumption of ESPR applies then both parents must consult each other on these issues.

Do we have to go to court?

Absolutely not. Despite the emotional trauma of separation, many parents are able to agree on the future care and welfare of their children. Such fortunate parents deserve congratulation for their ability to put the interests of their children ahead of the hurt and emotional trauma that often inevitably follows a separation.
The team at Kavanagh Lawyers understand that many people, quite reasonably, are reluctant to engage in the legal process, particularly when they have successfully reached agreement. The legal process can be very expensive in both financial and emotional terms so it’s important to be cautious in your approach. In considering whether you need to do anything else you may wish to consider the following:

  • Is your agreement verbal or in writing?
  • Is your agreement binding in law?
  • If your former partner breaches the agreement, what happens?
  • Will communication between you and your former partner always be as good as it is now? What happens if you or your former partner marries or has a child with someone else?
  • Will you be able to agree on future schools, medical treatment and holidays (Christmas, School holidays) interstate and overseas travel?

These issues are mentioned – so as to emphasise that whilst many separating couples start out with the best of intentions and goodwill, over the 18 years of your child’s life (and yours) many things can change. Ultimately, only you can assess if you and your partner will be likely to reach agreement in the future, without a formal binding and enforceable agreement

Consent Orders and Parenting Plans

The good news is that at a relatively low cost (particularly relative to the cost of litigation) and quite quickly, Kavanagh Lawyers can formalise the agreement between you and your former partner so that it is binding and enforceable in law.

Unlike Consent Orders, Parenting Plans cannot be enforced by the Family Court. However, the hard work and goodwill parents often spend formulating a Parenting Plan can relatively easily be filed as a binding and enforceable Consent Order.

And even better, your Consent Orders can be filed and pronounced final at the Family Court without you ever having to attend the Court.

Family Dispute Resolution

Sadly, in many cases, despite the goodwill and best intentions of one or both parents, agreement cannot be reached about the future care and welfare of their children. This does not mean you inevitably end up in the Family Court. First you and your partner may be required to attend mediation with a Family Dispute Resolution Practitioner (FDRP).

Litigation

Sometimes, despite the best efforts of both parents (or because of the inaction or lack of co-operation of one parent) the only option is to file an application at the Family Court.
The Family Court will make Orders concerning your child/ children on such matters as:

  • Who has parental responsibility?
  • Where children go to school?
  • Medical issues.
  • Who the children live with?
  • The time the children spend with each parent.
  • Whether parents are permitted to relocate children interstate or overseas.

Just because you file an application at the Court, it does not automatically follow that you end up at trial. It’s important to remember that:

  • Only a relatively small percentage of matters proceed to trial.
  • The Family Court is focused on encouraging parents to mediate and settle matters informally.
  • The time from filing an application for final parenting orders to a decision after trial is likely to be a matter of years rather than months.
  • Trials are very expensive in terms of emotional and financial cost.

Next Steps

Call Kavanagh Lawyers on (08) 6557 5888 to speak to our lawyers.

child relocation orders

child relocation ordersWhat is a Child Relocation Order?

A Relocation Order is an order from the Family Court permitting one parent to change a child’s residence intra or inter state or overseas. Where both parents agree the Relocation Order may be obtained by consent without the need for litigation, which can be costly in emotional and financial terms.

Can a Child relocation order be made by consent?

Where both parents disagree about relocation then the matter is litigated at the Family Court. In our experience every effort should be made to mediate an agreement. In our experience parents can sometimes adopt a black and white approach too early in the process.

Very often (and particularly where intra or inter state relocation is proposed) agreement on generous contact arrangements (visits in WA and interstate and overseas, holiday visits, Skype and telephone contact (and agreement on who pays for such visits) for the parent who remains behind can result in an agreement.

The agreement may not be ideal- but it in many cases parents agree an arrangement that both can live with. Mediation also allows the parents to have ownership of the decision. If the matter is litigated both parents lose ownership of the decision. It’s worth bearing in mind that no lawyer can predict a court outcome with certainty.

Where litigation is the only option.

Sadly, in some case litigation is that only way to resolve the issue. In such cases, unless there is clear urgency, you can expect to wait 6 to 18 month for the matter to be determined.

The Law in relocation cases

Since the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 there have been significant changes to the determination of children’s issues. The Full Court of The Family Court in Taylor and Barker [2007] FamCA 1246 summarised the general approach to be taken in a relocation cases as follows:

  • Consider and evaluate the factors identified in how a court determines what is in a child’s best interests (s 60CC).
  • Consider whether it is in the child’s best interests to spend equal or substantial and significant time with each parent (s 65DAA) without regard to the relocation proposal.
  • Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant” time, if either has been found to be in the child’s best interest, and will include a consideration of whether the proposal is “reasonably practicable”, if relocation is permitted.

Western Australian statistics on decided relocation cases

We detail below some statistics periodically released by the Family Court of Western Australia on location cases. We stress that each case must be considered on its own merits and these statistics show general trends only.

June 2013 to June 2014

Cases determined by a Judge

Interstate Intrastate International
NUMBER OF DECISIONS 3 4 5
PERMITTED 2 1 4
PERCENTAGE 66.6% 25% 80%

Cases determined by a Magistrate

Interstate Intrastate International
NUMBER OF DECISIONS 5 4 0 decision’s
PERMITTED 3 1 NA
PERCENTAGE 60% 25% NA

 

July 2014 to March 2015

Cases determined by a Judge

Interstate Intrastate International
NUMBER OF DECISIONS 5 3 4
PERMITTED 4 4 2
PERCENTAGE 80% 75% 50%

Cases determined by a Magistrate

Interstate Intrastate International
NUMBER OF DECISIONS 3 3 2
PERMITTED 2 3 1
PERCENTAGE 66.6% 100% 50%

There are many factors involved in whether a relocation case is heard by a Magistrate or a Judge. In very general terms the length of a trial and whether the proposed relocation is international or inter-state are key factors. Long trials and international relocations are generally (though not necessarily always) heard by a Judge.

Most common reasons for seeking to relocate (not necessarily the reason the application succeeds)

  • Financially advantageous
  • Professionally advantageous;
  • Academically advantageous;
  • Family support;
  • Spouse employment;
  • Spouse location;
  • “Homesick”.

Legal advice

Kavanagh Lawyers have a wealth of experience in relocation cases. Please contact us if we can be of assistance on (08) 6557 5888.