Parenting Matters

Role and Responsibility of the Independent Children’s Lawyer 768 432 Dorter

Role and Responsibility of the Independent Children’s Lawyer

An Independent Children’s Lawyer has been appointed. What does this mean?

An Independent Children’s Lawyer (“ICL”) may be appointed by the Family Court in parenting matters involving complexity, such as issues of risk, family violence and abuse. The ICL is appointed to represent the “best interests” of the child(ren). It is important to note that this does not mean that the ICL represents the child(ren). An ICL is not bound by instructions from a child(ren) and does not represent them in the same manner as the parents to the proceedings are represented. The ICL’s ultimate duty is to the Court.

When an ICL is appointed, the standard procedures undertaken are as follows: –

  1. The parties provide a copy of their respective Court documents to the ICL;
  2. A copy of all Orders are provided to the ICL; and
  3. The ICL is provided permission from the Court to issue subpoenas to obtain independent evidence.

Does my matter need an ICL?

An ICL is appointed in matters where there is complexity. Some examples include, but are not limited to, the following:-

  1. When there are allegations of abuse (physical, verbal, emotion or sexual);
  2. Where there is an intractable dispute between the parties;
  3. When there are allegations of mental health concerns for the child(ren); or
  4. When there are allegations that one or both parents are suffering from mental health issues.

These issues are usually identified in a party’s Affidavit or Notice of Risk / Notice of Child Abuse, Family Violence or Risk.

The appointment of the ICL can be made by the Court of its own volition, or one or both of the parties may make an application to the Court.

What is the Role and Responsibility of the ICL?

The ICL’s role is effectively to: –

  1. Act in the bests interests of the child(ren);
  2. Ensure that the Court is aware of the child(ren)’s wishes (pending the age of the child(ren));
  3. Collect expert evidence relevant to the child(ren);
  4. Act upon the evidence;
  5. Assist the Court in the determination of the parenting dispute.

Should the ICL meet with my Child(ren)?

It is not required that the ICL meet with the child(ren). The ICL is required to make an assessment of the facts of each case and identify whether or not it is appropriate to meet with the child(ren). Some examples when an ICL will not meet with a child(ren) are: –

  1. Very young children who may be unable to express a view (generally under school age);
  2. There are exceptional circumstances such as a risk of systems abuse; or
  3. Where there are practical limitations on meeting the child such as geographical remoteness. However, this issue is becoming less relevant in the current landscape where electronic communication is ever increasing.

Who Pays for the ICL?

Generally, an ICL is appointed by Legal Aid NSW and it is expected that the parties to the proceedings meet the costs of the ICL in equal shares, unless you are in receipt of a grant from Legal Aid. This amount is currently $3,300.00 up to the Defended Hearing, however, the specific facts of the matter may cause this figure to change.

Legal Aid NSW has the ability to waive the ICL’s fee, however, this is only in exceptional cases.

The Family Court of Australia has developed a document titled “Guidelines for Independent Children’s Lawyers (2013)”. These guidelines are the basis upon which ICL’s act and may be accessed here.

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 99298840.

Rebekah Dorter
Principal

Parenting Orders and Section 60I Certificates 1024 683 Dorter

Parenting Orders and Section 60I Certificates

The Family Law Act requires that a party seeking to commence Family Court proceedings to obtain parenting orders must attend mediation with a Family Dispute Resolution Practitioner to obtain a “Certificate of Attendance” (known as a section 60I Certificate).  

In some circumstances, the Family Law Act allows parties an ‘exemption’ from the above. If that is pleaded by a party, a Registrar or Judge will decide whether to allow the ‘exemption’. 

In most cases it is readily satisfied by a party’s non-attendance at the mediation, or in circumstances of urgency (such as relocation or recovery orders) or where there has been family or domestic violence.

A recent case of Valack & Valack (No. 2) [2020] FCCA 1799 has provided an interesting examination of the Family Court’s power where a Registrar did not agree the matter should be ‘exempt’.  

Valack & Valack (No. 2) [2020] FCCA 1799 – A brief background

In the recent case of Valack & Valack Judge Jarrett of the Federal Circuit Court of Australia examined the conduct of a Registrar who refused to accept for filing an Application for parenting orders where a Section 60I Certificate had not been obtained. 

His Honour said that the Registrar’s refusal involved two separate and distinct decisions: – 

  1. the decision on the request for exemption from the requirement to provide a Section 60I Certificate, being an exercise of judicial power vested by the Commonwealth to the Courts; and 
  1. the decision on whether to accept the Initiating Application for filing, being an administrative decision.

In distinguishing, His Honour explained that under the terms of s 60I(7) of the Family Law Act, the absence of a Section 60I Certificate operates as a barrier to the Court hearing the Application, rather than as a requirement for filing. Accordingly, the Court’s power to decide whether any exemption applies is not engaged until after proceedings have been commenced. As the Registrar decided whether the exemptions to provide a certificate applied prior to and as a barrier to the filing of the documents, the Registrar purported to exercise powers that were not properly enlivened. Accordingly, His Honour held that the Registrar made a determination without the proper power contained in the Family Law Act, the Federal Circuit Court of Australia Act 1999 (Cth) or the Federal Circuit Court Rules 2001 (Cth).

As to the second decision, His Honour concluded that the question of whether the documents should be accepted for filing was an administrative decision that was made on the basis of an irrelevant consideration. As this decision was not an exercise of judicial power, His Honour held that the rules pertaining to the review of Registrar’s decisions under the Federal Circuit Court Rules did not apply and instead the decision engaged provisions for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour proceeded to treat the application for review of the Registrar’s decision as if it were made under that Act (not the Family Law Act/Rules) and set aside the Registrar’s decision. 

This ultimately allowed the filing of the Parenting Application in question.

Implications – Are s 60I certificates required when filing?

The decision of Valack explains that the existence of a certificate filed under Section 60I Certificate of the Family Law Act only goes to the Court’s power to hear an Application. 

It does not prevent, or should not prevent, the Application at least being filed. 

It remains that a Section 60I Certificate is required for a matter to proceed to be heard by the Family Law Courts, and therefore good practice suggests that solicitors must continue to file certificates with Applications for parenting orders to avoid unnecessary administrative delay. 

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

Rebekah Dorter
Principal

Lauren Sanderson
Associate

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Understanding Child Support 1024 683 Dorter

Understanding Child Support

What is Child Support?

In Australia the Federal Government, through Services Australia, administers the assessment and collection of Child Support to ensure children receive an appropriate level of financial support from their parents after they separate or divorce. Services Australia provides services to parents and carers, assisting them by issuing assessments, reviewing those assessments and facilitating the collection of child support.

How do I apply for child support?

A parent can apply to the Child Support Agency (‘the Agency’) for an assessment to be made, for the other parent to pay them child support to assist with payment of expenses incurred for the benefit of the children of the relationship. 

When a parent makes an application for child support, that application means that both they and the other parent will be assessed in respect of the costs of the children. This assessment is made by comparing the respective income of the parents, coupled with the nights per calendar year each child spends with the parents.

When there is more than one child of the relationship, an application must be made for each child.  This application can be done online and requires the applicant to provide the following details of both parties:

  1. Contact details;
  2. Reference numbers;
  3. Income;
  4. Bank account; and
  5. Relationship details.

Can I change the rate of child support payable?

There may be several reasons how the amount of child support that you have been assessed to pay can change, including

a. Application to change the assessment

Once your annual rate of child support has been assessed, both you and your ex-partner may be able to apply to the Agency to change the assessment. The Agency is only able to change the assessment if they are satisfied there are special circumstances and the change would be fair to both parents and the child.

There are 10 reasons to apply for a change of assessment, including:

  1. The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child.
  2. The costs of raising the child are significantly affected because of their special needs.
  3. The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended.
  4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
  5. The child support assessment is unfair because you have paid or transferred money, goods or property to your child, the receiving parent or a third party, for the child’s benefit.
  6. The costs of raising the child are significantly affected by the parent or non-parent carer’s child care costs, and the child is under 12 years of age.
  7. Your necessary expenses significantly reduce your capacity to support the child.
  8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
  9. Your capacity to support the child is significantly reduced because of:
    a. your duty to maintain another person or child;
    b. the special needs of that person or child; and
    c. the costs of spending time with or communicating with that person or child.
  10. Your responsibility to support a resident child significantly reduces your capacity to support another child.

The Agency is required to notify both you and your ex-partner in writing when an application to change a child support assessment is accepted.

By entering into a Child Support Agreement

You and your ex-partner can agree to provide regular payments and/or payments for your children’s expenses that differ from what was assessed by the Agency and enter into a private agreement.

A child support agreement allows payments to be made in a number of ways including periodic payments, lump sum payments and payments for certain expenses (such as private school fees, extra-curricular activities and private health insurance), which are known as non-periodic payments. Further, both you and your partner can agree to enter into a binding agreement that provides for neither party to pay child support at all.

Depending upon the terms of the agreement, non-periodic child support may be made instead of the regular periodic payments or in addition to the regular periodic payments.

There are two types of child support agreements that you and your ex-partner may enter into, namely:

  1. A Binding Child Support Agreement (‘BCSA’); or
  2. A Limited child support agreement (‘LCSA’).

BCSA
BCSAs are intended to provide a high level of certainty and finality about child support arrangements. As such, the terms of an agreement are usually unable to be varied once the agreement is signed and the agreement is much more difficult to have terminated or set aside by a Court.

LCSA
In comparison, LCSAs are designed to consider changing circumstances and may be brought to an end after three (3) years if either party desires, or sooner if certain changes occur or the Court decides that the child support to be paid pursuant to the agreement is not proper or adequate. 

Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or rebekah@inst1045122-8984.ozhosting.com.

Maeve Cooper
Solicitor

Rebekah Dorter
Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Co-parenting in the time of COVID19 1024 682 Dorter

Co-parenting in the time of COVID19

The current COVID19 pandemic has required many of us to drastically alter our way of life in a matter of weeks and this in turn is having a significant impact on families and arrangements for the care of children.

For separated parents and carers, the additional stressors and uncertainties of the COVID19 pandemic can make navigating the Family Law process and co-parenting more challenging. In recent weeks we have given urgent advice to our concerned clients about how the COVID19 virus will impact their ability to comply with parenting orders and the options available to them if disputes arise as a consequence of the current pandemic.

Guidance from the Courts

On 26 March 2020, the Chief Justice of the Family Court of Australia and Federal Circuit Court of Australia, the Hon Will Alstergren, released a statement regarding parenting orders and the COVIC 19 pandemic. The statement provides useful guidance to parents concerned about their capacity to comply with parenting orders in the face of the current and potential restrictions and the capacity of the Court to assist them with these issues.

The key points from the statement are:

  • The Courts remain open to assist parties and provide parents with general guidance;
  • Parents and Carers must continue to act in the best interests of their children;
  • Parents and Carers are expected to comply with Court Orders in relation to parenting arrangements, including facilitating time being spent by children with each parent or carer pursuant to parenting orders.

Complying with Parenting Orders in the pandemic

If parents face circumstances where social distancing restrictions make complying with orders impracticable (for instance where orders designate changeovers are to occur at a contact centre or school which is not presently operating), they are encouraged to take the following steps:

  1. As a first step, and where it is safe to do so, parents should communicate with each other about their ability to comply with the current orders and attempt to find a practical solution to these difficulties. If you are communicating with the other parent in these circumstances, it is important for both parents to always consider the safety and best interests of the child, while appreciating the concerns of the other parent when attempting to reach new or revised arrangements. It is also important for parties to have regard to the likelihood of infection to vulnerable members of the child’s family and household, such as grandparents and those who may have underlying health conditions.

Where Agreement can be reached

  1. If parents and carers are able to reach an agreement on new or temporary parenting arrangements, they should put the terms of this agreement in writing in a document, or otherwise by email, text message or Whatsapp message. This is particularly important for parties who are presently involved in or likely to be involved in later family law hearings.
  2. If parties wish to formalise their agreement as orders, they have the option of putting consent orders to the Court electronically by filing them with an Application for Consent Orders. We are able to assist parties in formalising the terms of consent orders for this purpose.

Where parties are unable to reach agreement

  1. Parties who are not able to agree to vary parenting arrangements, or it is not safe for them to do so, are advised to keep children safe until the dispute has been resolved. Parents in this situation should take steps to ensure that each parent or carer continues to have some contact with the child/ren consistent with the parenting arrangements such by video conferencing, social media or by telephone.
  2. Where orders cannot be strictly adhered to, it is important that parties ensure the purpose or spirit of the orders are respected when considering altering the arrangements and that parents and carers act in the best interest of the children at all times.
  3. If parties cannot agree to alternate arrangements, or it is unsafe to do so, and one or both parents have real concerns, parents still have the option to make an application to the Court electronically to seek a variation of orders.

If you have concerns about implementing or abiding parenting arrangements in the context of the COVID19 pandemic, our team of highly qualified family lawyers are here to assist you. We have adopted measures to ensure that we continue to be able to provide tailored advice while prioritising the health and safety of all of our clients and their families during this period.

We are able to provide fierce representation in contested Court hearings where required, but also pride ourselves on reaching swift, amicable agreements for parenting arrangements through:-

  1. Mediation;
  2. Arbitration; and
  3. Collaboration with peers.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your parenting arrangements.  Please get in touch with us on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com.

Lauren Sanderson

Solicitor

Rebekah Dorter

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

What is Parental Alienation? 1024 683 Dorter

What is Parental Alienation?

What is Parental Alienation?

Parental Alienation is unique to families who have separated or who are having a parenting dispute. Parental Alienation occurs when one parent manipulates the relationship between a child and the other parent, for their own benefit, damaging the relationship between the child and the other parent.   The manipulator often sets out to destroy the relationship between the child and other parent by belittling and undermining the other parent. 

Parental Alienation results in the child actively rejecting their relationship with the other parent and refusing to spend time with that parent, for no apparent reason or justification. The child’s rejection usually reflects the attitude of the alienating parent, not the child’s own views, and can have devastating consequences on the child’s long-term emotional development.  It also has a devastating emotional impact on the parent who is separated from their child, which is often the aim of the alienating parent.

Common examples of conduct of an ‘Alienator’.

Parents, step-parents and/or grandparents can engage in alienating conduct. Some common behaviours include:

  1. Interfering with/monitoring communication between the child and the other parent;
  2. Deliberately speaking ill of the other parent in the child’s presence;
  3. Making unilateral decisions regarding the child’s long term welfare (eg moving residence or schools);
  4. Over-sharing unnecessary details of the separation with the child;
  5. Projecting their own fears and opinions of the other parent on to the child;
  6. Deliberately making the child unavailable to the other parent during scheduled times;
  7. Suggesting to the child, without justification or evidence, that the child has been the victim of abuse by the other parent.

Parental Alienation can be insidious. It can be difficult to detect the signs, or to differentiate it from other acts in a high-conflict separation. It is necessary to act quickly and obtain advice and help.

How and where to get HELP.

Steps should be taken quickly to address and stop the alienating parent’s conduct, to protect the child and the alienated parent. 

Fortunately, our Family Law system recognises the child’s right to have a meaningful relationship with both parents following separation, so long as it is in the child’s best interests. This means the child has a right to have both parents involved in their life, to the maximum extent consistent with their best interests.

When one parent alienates a child from the other parent, this is contrary to the child’s rights. Steps can be taken to ‘break’ this cycle, but timing is critical.

Our Family Law system provides different ways to protect children and the alienated parent. These include:

  1. Family Therapy;
  2. Counselling for the child, and the parent/s;
  3. Mediation and arbitration (Alternate Dispute Resolution);
  4. Court Orders.

If therapy, counselling, or Alternate Dispute Resolution are not successful, the Court can make orders to provide for the child to spend time with the alienated parent, and if appropriate, make orders that the child not spend time with the alienating parent for a period of time.

It is important to prioritise the health and welfare of your child. Whether you are concerned that your child is being alienated from you, or you are being accused of being an alienator, it is critical not to over-share your concerns or opinions with your child.

Ensure you obtain support from an adult network. Psychologists and family therapists are able to assist you through the process.

Seek legal assistance

Allegations of Parental Alienation should be taken seriously and help should be obtained promptly. Parental Alienation has a serious impact on you, your child and your relationship with your child. It also has an impact on your family law case. If you are concerned about Parental Alienation you should seek urgent assistance from professionals.

If you require advice about what steps to take, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

Dorter Family Lawyers and Mediators offers specialist family law advice in McMahons Point on Sydney’s Lower North Shore. Rebekah Dorter and Bronwyn O’Loan are experienced Family Lawyers working with Parental Alienation and are available to assist you.

 

Bronwyn O’Loan
Senior Associate

Rebekah Dorter
Principal

                                                                                                                

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Shared Parental Responsibility and Equal Time- Is there a Difference? 1024 683 Dorter

Shared Parental Responsibility and Equal Time- Is there a Difference?

Under the law, each parent has parental responsibility for a child who is under 18 years of age. This continues to be the case even if the parents separate or either or both of the child’s parents re-partner or re-marry.

What is parental responsibility?

Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children. This involves the parents having a say in the major decisions that affect a child’s life, including where the child lives, medical treatment, education and religion. In Australia, the Family Law Act 1975 (Cth) uses the concept of “parental responsibility” rather than “parental rights” in recognition that parental powers exist for the benefit of the child, and not for the benefit of the parent.

When a relationship breaks down, the law applies a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. This means that when making a parenting order, the Court is required under law to presume that it is in a child’s best interest for the child’s parents to have equal shared parental responsibility for the child.

Where there is no Court order, parents are able to exercise their parental responsibility independently or jointly and there is no obligation for the parent’s parental responsibility to be shared. However, when the Court makes an order for equal shared parental responsibility, the parents are required to consult with one another and make decisions about major long term issues that affect the child jointly, unless the court orders otherwise.

The presumption of equal shared parental responsibility will not apply if there is evidence that a parent or a person who lives with that parent has abused the child or engaged in family violence (such as emotional, economic or psychological abuse). The presumption can also be rebutted if the court believes that shared parental responsibility is not in the best interests of the child.

It is important for parents to understand that the presumption of equal shared parental responsibility does not mean a presumption for each parent to spend equal time with a child. If the Court is to apply the presumption of equal shared parental responsibility when making parenting orders, then the Court will use that presumption as the starting point for considering whether it is practical to make an order for the child to spend equal time with each parent.

Will the Court make an order for equal time?

The court will only make an order for a child to spend equal time with the parents if the court is satisfied that:

  1. it is in the best interests of the child;
  2. it would be reasonably practicable for the child to spend equal time with each parent.

When making parenting orders, the child’s best interests remain the overriding consideration. When considering the best interest of the child, the Court will look to various factors set out in the legislation, including, but not limited to:

  1. the benefit to the child of having a meaningful relationship with both parents;
  2. protecting the child from harm;
  3. views expressed by the child; and
  4. the extent each parent has participated in decisions affecting the child or spent time with the child.

When considering whether a proposed order for equal time is “reasonably practicable”, the Court must have regard to:

  1. how far apart the parents live from one another;
  2. the parent’s current and future capacity to implement such an arrangement for equal time and the impact of such an arrangement on the child; and
  3. other matters the Court considers relevant.

If the Court decides not to make an order sought for equal time, the Court must consider whether it would be in the child’s best interests and reasonably practicable for the child to spend “substantial and significant time” with each parent. An order for substantial and significant time will often involve an order for the child to live with one parent and spend designated time with the other parent that will include days that fall on weekends, weekdays and other such time as would allow the parent to be involved in the child’s daily routine and significant occasions.

If the Court decides that neither equal time nor substantial and significant time are in the best interests of the child, then the Court will use its discretion to make orders as to arrangements for the care of the child, considering the best interests of the child as provided for in the legislation.

Key takeaways

  1. Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children.
  2. Under the law, each parent has parental responsibility for a child who is under 18 years of age.
  3. Where asked to make parenting orders, the Court will presume (unless otherwise rebutted) that it is in the best interest of the child for their parents to have equal shared parental responsibility for the child.
  4. Equal shared parental responsibility does not mean the child spends equal time with each parent. There is no presumption for equal time under the Family Law Act 1975 (Cth).
  5. When considering the time that a child should spend with each parent, the Court will consider the best interests of the child as paramount, and also whether such an arrangement is reasonably practicable.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.  If you have recently separated or have any questions about your current situation, please call us on (02) 9929 8840 or email us at hello@inst1045122-8984.ozhosting.com to discuss your matter.

Lauren Sanderson
Solicitor

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.