What is Parental Responsibility?
If you and your partner have recently separated or you are thinking about separating and you have children, there are several decisions you need to make to ensure your children’s welfare is not at risk. This includes:
The Best interests of the child is the most important factor to be considered when making decisions regarding children. It is in a child’s best interests that:
The Family Court sees the need to protect children from harm, abuse, neglect or family violence as more important than having a meaningful relationship with both of their parents. This can affect what decisions the court makes about who has parental responsibility for the children and how much time they spend with each parent. There are other factors that the court looks at in deciding what is in the best interests of children and include:
As much as possible, the Family Court will make decisions in parenting cases based on the following ideas:
These are a general starting points – the requirement is for the Court to make decisions about parenting arrangements that are in a child’s best interests. The court will not make orders for a child to spend time with a parent, or give parental responsibility to a parent, if the court thinks that would be against the child’s best interests. What is in one child’s best interests might not be the same for another child – even from the same family. The court looks at what is in the best for each child individually, as well as how that would impact on the other children when it is required to make a decision about parenting orders.
You may think your ex does not deserve to see your children because your ex cheated on you or he was not good to you. The inference that a cheating husband cannot be a good father is a mistake . Your ex may have cheated on you but that does not mean that he or she would not give them the love and they care that the children deserve. Under the Family Law Act the parent in whose care the child is has the right to make day to day decisions for that child when that child is his or her care. Parental responsibility, that same parent has to also make major decisions of a child which includes:
What happens when parents disagree all that major decisions regarding their child?
Each of these decisions have lasting and long-term impact on the child. The court’s role is to ensure that the decisions that are made regarding the child are made in the best best interest of that child. Each issue has a specific legal test that needs to be applied and this area of low can be extremely complicated. It is important to seek legal advice from an experienced family lawyer in this instance to avoid costly mistakes.
Generally, the biological parents of a child or his or her guardians share parental responsibility or the decisions to do with that child. When parents do not agree or have disagreements on how to go about it, it can be very frustrating for parents. In circumstances where parents have substantially equal parenting time with a child, they usually share their decision-making powers and in cases of disagreement over major decisions regarding their child they can make an application to the Family Court and seek the intervention of the Court to make a final decision regarding that issue or they can Mediate to try and reach a mutual decision in respect to their parenting issues. Once that is achieved, the agreement can be documented in a formal agreement by way of Form 11 Consent Orders.
Sole parental responsibility happens when only one parent makes decisions for the child and the other parent has no right or say on that issue. Sole parental responsibility can be given to one parent on say one or more issues for example schooling or medical issues. Sole parental responsibility happens in very extreme cases when there is a risk to a child or when a parent is violent towards their child or when one parent is physically or mentally incapacitated.
For more information about equal or sole parental responsibility or issues surrounding your parenting that can affect you or impact on you parenting your child, you can contact one of our Family Lawyers on 9468 3297 or by email at email@example.com.
Parental alienation involves a child of a relationship or marriage. In the context of family law, parental alienation occurs when one parent influences the child to be hostile or indifferent or unfriendly or estranged to the other parent. It is a phenomenon that occurs when children unreasonably side with one parent to the exclusion or hatred of the other party for no specific purpose or good reason.
The alienating parent usually asks the child to choose, knowingly or unknowingly, between the two parents and causes the child’s mind to be clouded with negative thoughts and opinions about the other parent and sometimes even goes as far as brainwashing the child and threatening to abandon the child if the child decides to have a loving relationship with the other parent.
In younger children, parental alienation is hard to detect because younger children are not able to properly express opinions. Once children’s minds are poisoned, it can be hard to repair the damage between the alienated parent and the child. Some of the behaviours of alienating parents include:
We can help. Get advice from experienced lawyers in child dispute and parenting matters. Call ABMS Lawyers on 9468 3297 or email to firstname.lastname@example.org
One of the most difficult issues involving parental responsibility is that of parentage.
If you suspect that the child is not yours, you can request a DNA test. If the other party refuses to consent to one, then you can make an application to the Family Court for Orders for parentage testing.
The Family Court has power to deal with paternity disputes and presumptions of paternity issues and has the power to order parentage testing to determine if a party is the biological parent of the child.
Under the Family Law Act, a presumption of parentage arises from marriage, cohabitation, registration of birth or by a court finding, a signed acknowledgement of paternity and at artificial conception.
Rebuttal of presumption
The presumption of paternity is rebuttable by proof on the balance of probabilities.
Parentage tests or DNA Tests
If the paternity of a child is “in issue”, the court may require a parentage testing procedure be carried out for the purposes of obtaining information to assist in determining the parentage of the child. If you find yourself with question marks in respect to the paternity of your child, you can apply to the Family Court for a declaration that the child is or not yours. There are two types of declaration:
QUESTION: Can I force the other party to take a DNA test if he or she refuses?
Answer: The Family Court regards issues of paternity as medical rather than a legal issue. In certain circumstances an inference can be made that a party is a parent of a child when they refuse to submit to a testing to determine the parentage of the child. Where the alleged father is under 18 years of age concerns of a parent or a responsible person is required. A child may be forced to be tested even if he refuses when a parent or responsible person has consented to the testing on his or her behalf.
The testing to determine parentage is to be carried out by laboratories accredited by the National Association of testing authorities Australia. The testing procedure is set out in the regulations of the family law regulations.
The party requiring the tests usually pays for them, but parties can share costs if agreed.
For more information about equal or so parental responsibility that can affect you or impact on you parenting your child please contact our Family Lawyers on 9468 3297 to find out more about DNA tests and how to go about them.
What you need to know when moving with a child
If there are Court Orders in place and you decide to relocate with a child and do not have variations to the orders to allow the other parent do have contact with a child, you will be setting yourself up for an application to be made against you to either set aside those orders or to vary them at the very least. You and the other parent should discuss your move or possible relocation. If the other party objects to you moving or relocating away with the child, they can make an application to stop the relocation they can also seek holders to place their children on the airport watchlist .
If you are objecting to the other parent moving with your child or relocating elsewhere with a child whether Interstate or overseas with a child, you should contact ABMS LAWYERS immediately so we can assist you in making an application to the Family Court in respect to the impending relocation. You should not wait to “see what happens” as it may be too late to recover the child by then. Once an Application is made, the Court will decide whether it is in the best interest of a child for them to relocate with the other parent. The relocating parent must satisfy the court that :
Children relocation cases are extremely complicated, time consuming and sometimes heart-breaking if not handled properly. If your ex- want to relocate with your child or children or if you want to relocate with your children or children, get in touch with our family law lawyers at 9468 3297 or email us at: email@example.com
changing custody orders or parenting agreements is only doable if you’re lawyer can prove something called an material change in the circumstances be careful about agreeing to custody arrangements because once you have them on paper once the court orders are made will be very difficult to change them you can’t simply back up and say and go to the court and say I want to change their arrangement remember the other party must consent to their change as well to learn more about your rights in entering into a parenting agreement or custody arrangements or to change parenting arrangements or parenting orders contact air ABMS lawyers hey BMS family lawyers our contact air BMS children child custody to learn about your full rights on 94742832
A material change in circumstances is something that was not contemplated by the parents when they entered into an agreement or an order regarding custody or parenting orders. This means you must prove that something unusual or an contemplated has or curd which necessitates a change in the custody arrangements . They change must be major and long lasting.
The Family Court of Australia set out they test for varying or changing child custody or parenting orders in the case of Rice and Apland in Court.
The parents applying for a change in their custody or access older mice meet this threshold requirement of demonstrating that immaterial change in their circumstances has occurred and affects the child. For that threshold to be met the Court must be satisfied that a change in the condition means needs or circumstances of a child or in the ability of the parents to meet the needs of the child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the court who made the initial orders who stop called master assume the correctness of the initial orders and consider only they change in circumstances since the order was issued. Examples of material change in circumstances and custody:
If the court makes a finding that a material change in their circumstances exists, the court must also consider what is in the best interest of the child in determining whether their custody orders or parenting order should be changed or varied or set aside :
Changing child custody orders or arrangement is a complicated aerial family law. Before and during this process always make sure you at least consult with a child custody lawyer to know the loops and hoops of custody situations and the courts process .Contact our Perth Family Lawyers who has experience in this area to access your case and to give you sound and practical advice you can rely on.
Child abduction is against the law. It usually happens when one parent wants to alienate their child from the other parent , is afraid for the child safety or simply wants to move with a child without proper without following proper court procedure.
When your child is abducted, if you know where he or she has been taken to you need to first figure out whether the country the child has been abducted to is a signatory to the Hague Convention or not. There are currently 90 three countries which have signed up with a head convention for stop the head convention attempts to retain their abducted child to his or her habitual residence in an expedient manner.
In other words, if your child is abducted too for example New Zealand or the United States of America or any country which is a HAGUE Convention signatory, you will need to immediately commence the proceedings in the US or New Zealand. A Court in the US or NZ may make an order to return your child to Australia if they determine that your child has been wrongfully removed and there’s little or no risk of harm if he or she is returned to Australia. If an order is made for the return of your child, the police and all authorities will assist to return your child to his or how about your place of residency which would be Australia.
In Australia, there is also a procedure that the government has put in place for the recovery of children under the direction of the Attorney General which may be a cheaper option for you to go through.
If your child has been taken to a country that is not a HAGUE signatory your job will be more difficult, and it might be hard to extract the child back to Australia. You will need to commence proceedings in that country where your child is currently living in an and ask the Court there to order for your child to return to Australia. Please note however that in both noted situations the more you wait and do nothing about it the chance or the unlikelihood of these courts determining that your Child’s usual place of residents may have been changed to the country where the child has been abducted 2 due to the passage of time and the best interest of your child who needs stability in his own her own life.
Our family law right provides the following test for determining what a usual place of residence is for the purposes of this division a child is habitually resident in the place where the child mostly resided with his or her parents if the parents are living separately and apart, with one parent under an agreement with the implied consent of the other parent or under an order of a court or tribunal or with a person other than a parent or a permanent on a permanent basis for a significant period of time.
They removal or holding of a child without the consent of a Guardian does not affect the child habitual residence unless the Guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order overcoat or an extra provincial tribunal.
The parents have the right to tell their side of the story when child abuse is being alleged. You have a right to have a lawyer to represent you in regards to the proceedings on negotiations regarding contact with a child .
sometimes the Department of child protection and services is involved when serious allegations of child abuse have been made buy a party to the proceedings or one of the parents of a child or another person for example their school.
DCP is short for Department of Communities, Child protection and Family Support. DCP deals with issues of child abuse including neglect. They can get involved with any family once reports of abuse against a child or children has been raised. This could be police schoolteacher or the Family Court when a Notice of Family Violence or abuse has been filed by one or both Parties.
DCP will make findings about their investigations and will write to both the parties and the Family Court. For example, when the investigation is complete there are two possible outcomes namely, a decision that the child has been abused and that the child need protection or that the allegations have been unsubstantiated and that the charge does not need protection from that parent .
Sometimes if the allegations are too serious the child may be removed from the care of its parents.
For further information about parenting disputes, DNA Tests and Child Support, contact one of our Perth Family Lawyers for a confidential chat on 9474 2832 or via email at firstname.lastname@example.org to obtain prompt and effective legal advice.
Are Parenting Orders Really Final?
Parents who are separated can finalise care arrangements for their children by formalising same into a Parenting Plans or Orders for way of orders. These orders can either be made by consent or by the Court following a trial. A parenting Plan is not a Court Order. It can be breached anytime without consequence. There are certain situations which give rise to final parents’ orders being challenged and subsequently changed.
In Parenting matters, to vary final parenting orders without consent of the other parent, there must be a material change in circumstances. This change may either be a new factor which has arisen since the final hearing or a material non-disclosure during the case (for example, family violence not disclosed). It may also be that several changes, whilst immaterial in isolation, when occurring altogether at the same time may be sufficient to constitute a material change.
The duty to establish a material change is on the party that is making an Application in Family Court. You must be mindful that the Family Court will not lightly entertain an application to vary final parenting orders. Endless litigation is not only a drain on the Court’s resources but it can also be detrimental to the psychological wellbeing of both litigants and their children.
For there to be a material change in circumstances, the change must be so significant that there is no doubt in the Court’s mind that litigation is necessary. The Court also needs to balance that up with the litigation and the best interests of the children.
Once a material change has been established, the care arrangements of a child are determined in the ordinary way.
Categories of Material change(s)
Some of the more prevalent categories in which litigants typically apply to vary final parenting orders are child sexual abuse, relocation and serious ongoing parental conflict.
Relocation refers to a situation where one parent moves to another geographical location with a child which makes it difficult for the other parent to spend time with that child. Relocation is not its own distinct category of parenting case and it follows the same pathway as other parenting cases.
Generally, relocation will be a sufficient change given the correlation between relocation and the breakdown in the parent-child relationship which is tied to one of the primary considerations when determining what is in a child’s best interests.
Relocation does not need to have actually occurred for it to satisfy the material change test. In Fryda and Johnson, the mother who had primary care of the children advised the father that she intended to remarry and move to Japan. The impending and not actual move was considered a material change.
In Radford and Alpe, the mother, who had primary care of the children, and her new partner, were permitted to temporarily reside in the US. They were permitted to stay there when her new partner secured employment there and the children had settled.
When we talk about relocation we typically think of moving states or overseas but that also includes intrastate travel. In D & M (unreported), care arrangements were based around the parties living a few minutes away. The fact the mother then moved an hour away was deemed a material change and the care arrangements were varied.
In circumstances where parties are already involved in Family Court proceedings, it can be difficult to prove parental conflict in and of itself is a material change. If parents were free from conflict, they would not be in the Family Court.
Parental conflict occurs on a continuum. At one end, parents disagree to a minimal degree. At the other end, there exists family violence to the extent the welfare of the children is effected.
Where parental conflict moves from disagreement to contravention of orders, new circumstances are created but they are not necessarily material. As was the view in S & J, the first step for redress in those circumstances is to bring enforcement proceedings.
Ongoing conflict between parties which impact on a child’s psychological welfare may constitute a material change. In CAC & CGH, Scarlett FM found the ongoing hostility between the parties remained constant and had the potential if not the actuality to cause emotionally difficult for the children.
In VDR & R (No 2), the father sought residence in the context of ongoing litigation and conflict between the parties and the mother sought the father have no contact with the child. The father was granted residence notwithstanding this altered an eight year status quo. The judicial officer found that if the child remained living with the mother and contact was continued, it appeared the mother would not embrace that concept, whereas if the child resided with the father, he would encourage contact between the child and the mother.
Passage of time
When determining what is in the best interests of the child, judicial officers are to consider whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.
If time alone were to substantiate a material change, there may be an influx of parents seeking to re-agitate proceedings after a period of time in an attempt to obtain more favourable parenting orders (i.e. have a second bite of the cherry). That would cause repeated, lengthy and costly litigation with is neither good for the court, the child or the parents.
The passing of time may however result in changes to any one of the factors which the Court is to consider when determining the child’s best interests.
One of the more obvious examples is the views expressed by the child and any factors relevant to weighing up the child’s views. In this regard, the views of an immature young child will not be taken into account whereas the views of a mature teenager will. It may be that an express desire of a mature teenager to alter their care arrangements is material enough to warrant a change.
Another more obvious answer is that typically infants spend shorter but more frequent periods of time with the non-resident parent, compared to non-infant children. Time and the practicalities of life create the need for a variation of those arrangements. To combat circumstances such as these, some judicial officers make orders for a limited duration with directions to review the order after a period of time.
Sexual abuse goes to the very core of determining what is in the best interests of the child. Protecting a child from physical or psychological harm is a primary consideration of the Court and outweighs the importance of the child having a meaningful relationship with both parties.in one case, the Court stated that “sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”Another case where child sexual abuse constituted a material change in circumstances was where orders had been made for the eldest child to live with the father and the youngest child to live with the mother. Thereafter each party sought primary care of both children. Serious sexual abuse allegations were made against the father. Although the evidence was insufficient to establish the father had perpetrated such abuse, the circumstances were so suspicious that on the balance of probabilities, the father was deemed an unacceptable risk to the children. Therefore, a material change in circumstances was deemed to have occurred to warrant the court to reconsider the children’s best interests.Sexual allegations themselves however are not an automatic cause for a material change. In D and Y, orders were made for the father to be the primary carer of the child. When the child later made allegations the mother and her new partner performed satanic rituals, she made an application for his primary care. Her application was dismissed because the child’s claims were deemed baseless.
The presence of the coronavirus is not, in and of itself, a material change. The effect of certain aspects of the coronavirus may however cause a material change, although these would not be permanent. By way of a few examples:
If you live in Perth or anywhere in Western Australia and require advice from one of our team, concerning parenting matters or any other matter arising from the breakdown of your relationship, contact us on (08) 9468 3297, via email or make an online booking..