Level 22 Westfield Tower, 101 Grafton Street Bondi Junction NSW 2020
Email:bondijunctioncriminalandfamilylawyers@outlook.com
Telephone 0424349347
Court Appearances
We appear in Interim Hearings, Urgent Child Recovery Orders, Urgent Applications in a Case, Final Hearings, Conciliation Conferences, Directions Hearings, Mentions and Contravention Applications.
Steps involved in court proceedings
What is a parenting order?
A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it. A parenting order may deal with one or more of the following:
■ who the child will live with
■ how much time the child will spend with each parent and with other people, such as grandparents
■ the allocation of parental responsibility
■ how the child will communicate with a parent they do not live with, or other people
■ any other aspect of the care, welfare or development of the child.
A parenting order can require the parties to follow certain steps before applying to a court to change an order. It can also state the process for resolving disputes that arise from the order. If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.
Your legal obligations
■ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order.
■ The order remains in force until a new parenting order or parenting plan changes it in some way.
■ Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
■ Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.
Parenting Plans
A parenting plan is a written agreement that sets out parenting arrangements for children.
Because it is worked out and agreed jointly, you and your former partner do not need to go to court. Unless the Court orders otherwise, you and your former partner can agree to change a parenting order (made on or after 1 July 2006) by entering into a parenting plan. A parenting plan is not legally enforceable. It is different from a parenting order, which is made by the Court.
Consent orders
A consent order is a written agreement that is approved by the Court. A consent order can cover parenting arrangements for children as well as financial arrangements such as property and spouse or de facto maintenance. Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing.
Child Urgent Recovery & Location Orders
A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:
■ parent of the child
■ person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
■ person who has parental responsibility for the child.
A recovery order can authorize or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.
A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorize the arrest (without warrant) of the person who again removes or takes possession of the child.
Who can apply?
You can apply for a recovery order if you are a:
■ person who the child lives with, spends time with or communicates with as stated in a parenting order
■ person who has parental responsibility for the child in a parenting order
■ grandparent of the child, or
■ person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
How do I apply?
An application for a recovery order should be filed in the Federal Circuit Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.
On the application form, you must say what orders you are asking the Court to make. For example:
The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child/ren] may be found.
You must also file an affidavit to support your application. You should include details of the following points, if applicable:
■ A brief history of the relationship between you and the person the child is presumed to be wit
■ A list of previous court hearings and family law orders
■ Details about the child and where he/she usually lives
■ How and when the child was taken from you or not delivered to you
■ Where the child might be and the basis for that belief
■ Steps (if any) that have been taken to find the child
■ Why it is in the child's best interests to be returned to you
■ The likely impact on the child if a recovery order is not made
■ Any other factors relevant to the case.
Please note, this is not a complete list and may vary depending on the circumstances of each case. It is essential that all relevant facts are disclosed, particularly evidence relating to any complaint that the person with the child might have about you.
Your chances of recovering the child will improve if you have information about where the child is likely to be. You should collect as much information as possible to help authorities find and return the child.
What happens at court?
In deciding whether to make a recovery order, the Court must regard the best interests of the child as the paramount consideration. The Court may make an order which allows or requires a person to return the child to you at a designated time and place. In some cases, the Court may make a recovery order which authorizes or directs a person or persons, such as police officers, to take appropriate action to find, recover and deliver the child to you.
Note - The Court is not a child recovery agency. If the Court makes an order authorizing or directing another person or persons to find, recover and deliver the child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).
The AFP will not generally recover a child, except in exceptional circumstances, until you are able to receive the child and are close by. This means you may need to travel to collect the child when he or she is recovered.
The AFP has offices in each capital city and some regional locations. Go to www.afp.gov.au or look in the White Pages for contact details.
When the child is returned to you, you must notify registry staff at the Court as soon as practicable.
What if the child still isn't found?
In some situations, you may ask the Court to issue other orders to help locate the child, for example:
■ A Location order requires a person to give the Court information about the child's location
■ A Commonwealth Information order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location that is contained in or comes into the records of the Department
■ A Publication order allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different, and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
What if the child has been taken from Australia?
If a child has been taken from Australia without your consent, or has not been returned to Australia, you should contact the Commonwealth Attorney-General's Department for assistance.
Australia has an agreement with some countries to return abducted children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). For a list of countries party to the convention, go to www.ag.gov.au (look under the international child abduction link) or call the Department on 1800 100 480.
Contravention of Parenting Orders
A court can only penalize someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide that:
1. the alleged contravention was not established
2. the contravention was established but there was a reasonable excuse
3. there was a less serious contravention without reasonable excuse, or
4. there was a more serious contravention without reasonable excuse.
If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Depending on the situation and the type and seriousness of the contravention, a court may:
■ vary the primary order
■ order you to attend a post separation parenting program
■ compensate for time lost with a child as a result of the contravention
■ require you to enter into a bond
■ order you to pay all or some of the legal costs of the other party or parties
■ order you to pay compensation for reasonable expenses lost as a result of the contravention
■ require you to participate in community service
■ order you to pay a fine
■ order you to a sentence of imprisonment.
Compulsory Family Dispute Resolution
This is a process in which a family dispute resolution practitioner, independent of all the parties, helps people resolve some or all of their disputes with each other during and after separation and divorce.
Parties are required to attempt to reach settlement in relation to matters unless the Court grants the applicant an exemption. If agreement cannot be reached at mediation the parties may be issued with a s60I Certificate stating that the matter is unsuitable for mediation. Depending on your subjective circumstances you can file your application in different courts. If your application is in relation to Children and or Property and you were married you can file your application in either the Federal Magistrates Court of or the Family Court of Australia. If you were previously in a De -Facto relationship you can file your application in the Family Court or the NSW Supreme Court. No matter what your application is you must be mindful of your potential legal costs and disbursements. If you are not in receipt of a grant of Legal Aid and are represented by a private lawyer and or barrister your legal costs and disbursements could be high. In this regard it is prudent, if you are considering a property application as the Court does, the total pool of assets of the relationship net of debt including but not limited to the value of any real property, the estimated discharge of any mortgage held over real property, superannuation, shares, money held in bank accounts and household chattels. The Court will consider the financial and non-financial contributions of both parties to the relationship.
Before you apply to the Court for a parenting order, including those seeking changes to an existing parenting order, you need to attend Family Dispute Resolution (FDR) and obtain a certificate from a registered FDR provider.
There are some exceptions to this requirement, such as cases involving family violence, child abuse, or urgency. For more information about these exceptions, see the fact sheet Compulsory Family Dispute Resolution ? court procedures and requirements.
Allegations of Child Abuse and Neglect
The paramount consideration of the Court is the child's best interests. There is a presumption that it is in the best interests of the child to spend substantial and significant time with both parents
Family Law Act - Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal
shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be
in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is
reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order)
for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to
spend equal time with each of the parents, the court will regard the best interests of the child as the paramount
consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have
equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child
to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of
the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of
the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order)
for the child to spend substantial and significant time with each of the parent
unless that presumption can be overturned by proving that it is not in the nest interests of the child due to child abuse and neglect.
Section 61DA – presumption of equal shared parental responsibility when making parenting orders
FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a
presumption that it is in the best interests of the child for the child's parents to have
equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental
responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the
child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a
parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's
family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court
considers that it would not be appropriate in the circumstances for the presumption to
be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not
be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Children's Contact Centres
In cases where the Court has found that it is not in the child's best interests to spend substantial and significant time with one or both of the parents, if the Court makes Orders that the time the parent spends with the child be supervised if no third party such as a grandparent is available to act as the supervisor contact can occur at a Children's Contact Centre. Click this link for further information:http://www.fmc.gov.au/pubs/docs/contact.pdf
De-Facto Relationships
http://www.ag.gov.au/FamiliesAndMarriage/Families/Pages/DeFactoPropertyRegime.aspx
Family Law Property Settlements
Prenuptial Agreements (Binding Financial Agreements)
By: Sydney Criminal and Family Lawyers 04-Jul-2012
Keywords: binding financial agreements
What are financial agreements?
It brings finality to the negotiations and formalizes the agreement. It clarifies initial and ongoing financial contributions of the parties. It protects the interests of both parties, their assets and their wealth, preventing the other from making a claim against these.It documents in writing the terms agreed to and the mutual obligations of each party.It binds both parties’ legally allowing the Courts a right to enforce the agreement. It prevents any claim being made against the party’s estate or any inheritances they may receive.It enables effective resolution of financial matters at the end of the relationship. It brings the agreement and any dispute of a legal nature that may arise therein under the Family Law Act 1975. It gives greater certainty and control to the parties over their financial affairs than s79 or s90SM and therefore gives greater Judicial discretion.
Disadvantages of the Agreement
A financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been terminated and has not been set aside
A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.
Yes. The Family Court and the Federal Circuit Court deal with issues related to the children of de facto relationships in the same way as the children of married couples.
Yes. From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples.
You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.
Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:
You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.
You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.
Your application is made using the same forms that are used by parties to a marriage and your case will be dealt with under the same procedures that apply to married couples making the same type of application.
