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Tag Archive: children

  1. Joint Parental Responsibility and Medical Treatment

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    If you have a Court Order or Parenting Plan that states that yourself and your ex-partner have ‘Joint Parental Responsibility’ or ‘Joint Decision-Making Responsibility’ for your children, this means that yourself and your ex-partner must take all reasonable steps to confer and agree on long term decisions for the children. These types of decisions include, but are not limited to, choice of the children’s name, religion, schooling and medical care. However, what happens if parents cannot agree on whether the child should attend for a medical diagnosis or where the child should receive care?

    In circumstances where a child needs medical treatment for a less serious and temporary ailment such as the flu or a scraped knee, this can arguably be dealt with unilaterally by one parent. When making these decisions, it is important to still ensure that the terms of the Court Order/ Parenting Plan are consulted, the other parent is still notified, and clear communication is shared about the medical treatment, diagnosis and any ongoing medical treatment that may be required.

    On the other hand, where a formal diagnosis for a more serious condition which requires ongoing accommodations is sought (for example, Autism Spectrum Disorder and/or Attention-Deficit Hyperactivity Disorder) this requires joint agreement from both parents.

    If the parents are not in agreement, and the Federal Circuit and Family Court of Australia has not already made an Order on this issue, then an application could be made to the Court for the Court to adjudicate on the matter. The Court will often make one of the following three Orders:

    An Order providing one parent sole parental decision making responsibility for all issues;

    An Order providing for a specific determination on the matter at hand; or

    An Order providing one parent sole parental decision making responsibility for one specific issue.

    It is more common for the Court to make an Order in line with options 2 or 3, which still leaves the parents with ‘Joint Decision-Making Responsibility’ in respect of all other matters.

    Alternatively, rather than progressing the matter to Court, the parents could attend at mediation or other forms of dispute resolution to discuss the matter.

    Bethany Bellion, Solicitor at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, practising in the areas of Wills, Estates and Family Law.

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

    Next Article: Avoiding The Snowball Effect: Joint Parental Responsibility and Medical Treatment

  2. Avoiding The Snowball Effect

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    The golden rule in coparenting is that effective communication is crucial.

    It can be tempting to ignore or delay replying when you see a message from the other parent and, let’s face it, most people would prefer not talking to an ex if they had the choice. However, this is where the problems often start and not communicating (or not doing so appropriately) can easily make everything worse.

    Where it is safe to do so, having a quality communication channel with the other parent prevents small problems from turning into big ones and the key to stopping this snowballing effect is for both parents to follow some fundamental rules of communication.

    Be polite and start with a greeting.

    Don’t ever insult the other parent or imply that they’re not doing as good a job.

    Keep the messages to the point and factual so the other parent can respond in the same manner.

    Always get the other parent’s side of the story on any incident first rather than jumping to conclusions.

    Assume that everything you write will be brought up at some point in the future to someone important.

    Acknowledging receipt of messages from the other parent is important and, if you can’t reply straight away, provide a reasonable timeframe for when you’ll respond.

    If your child misses a call from the other parent, organise a time for them to call back.

    If you need some help, try using a parenting communication app but always call if there is an emergency.

    There are plenty more rules, but these will stop a lot of molehills from turning into mountains which makes for a far smoother coparenting experience. If nothing else, it’s always beneficial for kids when they can see both parents on the same page and getting along.

    Joshua Noble is an Accredited Family Law Specialist at Zande Law located at Suite 3, Jade Chambers, 15 Middle Street, Cleveland. To contact Josh for advice, please phone (07) 3385 0999 to schedule an appointment.

    The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

    Next Article: Parenting Coordination and Family Law Parenting Orders: Avoiding The Snowball Effect

  3. Parenting Coordination and Family Law Parenting Orders

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    After lengthy legal proceedings to obtain Parenting Orders, it can be disheartening for parents when one parent continues to act in a way that is not supported by the Orders; for example, by using abusive language, denigrating the other parent, or otherwise doing or failing to do particular things with or around the children.

    Although the Family Law Act 1975 (Cth) contains provisions that allow a parent to take the ‘offending’ parent to court for alleged breaches of Parenting Orders, the threat of court proceedings doesn’t always deter this behaviour. Very commonly, the court acts leniently towards the offending parent because fining, imprisoning, or imposing some other sanction on a parent always carries the risk that it could harm the children. 

    A potential solution to this problem is for the parents to jointly engage a Parenting Coordination (‘PC’) service. PC is an alternate dispute resolution technique that assists parents in effectively communicating, managing and resolving conflicts related to Parenting Orders and Parenting Plans. Parenting coordinators help co-parents by establishing clear rules for engagement, encouraging cooperation and curtailing hostility. The intention is to resolve disputes outside of court, and avoid the stresses and cost of further court applications.

    In practice, if Orders state that the parents are not to use abusive language in communications with each other and one parent continues to do so after the Orders are made, then the parenting coordinator can stop and advise the parent that their behaviour may be in breach of the Orders, remind them of the sanctions the Court might impose, counsel the parent on how to appropriately communicate in that matter, and seek to be copied into future communications to minimise recurrent events.

    Another advantage of PC is that none of the parents’ interactions with the parenting coordinator are protected by any confidentiality or immunity. Therefore if the ‘abusive’ parent continues to use abusive language even after conversations with the parenting coordinator, these communications can be presented to a Judge.

    For these reasons PC services are certainly increasing in popularity amongst our clients and are an incredibly useful resource for parents seeking to enforce Parenting Orders or Parenting Plans outside of court.

    Madeline Crnkovic, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the areas of Wills, Estates and Family Law.

    The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.

  4. Can I lock in my child support payments?

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    Can I lock in my child support payments?

    It’s possible for parents to organise and maintain private agreements in relation to child support obligations and for this money to be paid either directly to the supplier (such as a school) or to the other parent’s nominated bank account. However, for parents wanting these arrangements to become locked in, consideration should be given to executing either a Binding Child Support Agreement (Binding CSA) or a Limited Child Support Agreement (Limited CSA).

    A Binding CSA or Limited CSA can include various forms such as an ongoing amount and/or specific ‘non-periodic’ payments such as tuition fees.

    When parties enter into a Binding or Limited CSA, it is important to consider the following:

    • A Binding or Limited CSA cannot be varied but can only be terminated or set aside by a Court so it is important to ensure the Agreement is perfect before signing;
    • A Binding CSA requires each parent to obtain independent legal advice as to the effect and advantages/disadvantages of the Agreement for it to have any effect. However, a Limited CSA doesn’t require legal advice though the agreed payment must be equal to or greater than the ordinary assessed amount of child support;
    • There are limited circumstances where a Court may set aside a Binding or Limited CSA. The most common are if the Agreement was obtained by fraud, without free and willing consent of one or both parents or if there has been a significant change in circumstances to a parent or child as a result of exceptional circumstances;
    • Parents should ensure that they fully understand the terms and effects of a Binding or Limited CSA and be aware of the estimated payable amount otherwise assessed by the Child Support Agency. A Limited CSA requires there to be an administrative assessment in force in relation to the child of whom the Agreement is made; and
    • Either parent might have a change in annual income in the foreseeable future making any Binding or Limited CSA more or less advantageous.

    If the parents cannot reach a private agreement, collection is available via Services Australia. However, for parents looking to lock in each other’s financial contributions towards raising the children, a Binding or Limited CSA should be given serious consideration.

    Joshua Noble is a Family Law Solicitor at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Joshua for advice, phone 3385 0999.

    The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.

  5. What’s in a name?

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    Earlier this year, a Court in Italy ruled that children will automatically have the last names of both parents unless they agree otherwise. It remains to be seen how this will affect circumstances where one parent is absent or perhaps a perpetrator of severe domestic violence, though it would seem likely that future laws will be created to allow only one parent to select the child’s name in exceptional circumstances.
    In Australia, there are limited restrictions on a baby’s name even if both parents agree on what it will be. Offensive or obscene names such as ‘4real’ have been refused registration along with any name that is otherwise an official title such as Queen, Corporal or Prime Minister.
    What happens though when the parents can’t agree on the name? Well, it gets a little complicated but thankfully our legal system has a solution.
    A child’s name falls into one of five special categories that are seen as major long-term decisions. The other categories include religion, schooling, major medical decisions and where a child lives, if it significantly affects the ability for them to spend time with both parents.
    Any decision in one of these categories must be made jointly by both parents or otherwise authorised by a Judge, though things can get murky if only one parent is actually involved, or getting a signature from the other is impossible. However, when Mum and Dad are both adopting their parental responsibility, our law requires them to reach a decision together on something as important as their child’s name. If no agreement can be reached, it’s time for mediation and if all else fails, they’re off to Court and a Judge will ultimately make the decision after listening to each parent give their reasons for why they like a certain name and cannot possibly live with what the other parent wants.
    Thankfully, a Judge being forced to choose a child’s name is rare but it will be interesting to see whether the trend emerging out of Italy of both parents’ last names being included as the default position spreads to the rest of the world. It’s at least an improvement to the parents who tried (and failed) to call their children Robocop or Ikea.

    Joshua Noble is a Solicitor at Zande Law, North Lakes, practicing in the area of Family Law. To contact Joshua for advice phone 3385 0999.

    The information in this newsletter is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

  6. How does Covid-19 impact on legal services and the law

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    How does Covid-19 impact on legal services and the law

    Although undoubtedly, the present restrictions on human contact and movement are having an unpresented impact upon Australia’s economic prosperity and these same factors are undoubtedly impacting also on many people from a mental health perspective. For the most part, none of these restrictions should effect the way the law or the delivery of legal services have operated and/or apply.

     

    Family Law Cases

    The Chief Justice of the Family Court has issued a public announcement that unless a particular family is actually suffering a Covid-19 infection, the Court expects that pre-existing arrangements for the share of care and decisions making for the children should continue on unaffected. The existing family law principles already are flexible enough to adapt to a world where the value of businesses, stock market investments, superannuation and/or Real Estate are undergoing dramatic fluctuations as a consequence of broad base external factors as was previously seen with events such as the property boom in the late 90’s early 2000’s and the consequent global financial crisis of 2008.  Otherwise, the Family Court itself is still very much open for business and is presently running all of its cases via telephone and video link. All court documents are now being filed via the Court’s online portal, a system which has been up and running now for several years. There are some disruptions and delays, but by enlarge the court is still functioning as normal.

     

    Buying and Selling Real Estate

    Although worries over job security and the potential for a dramatic drop in real estate prices are undoubtedly impacting on confidence and the consequent willingness of parties to enter into and/or proceed to complete real estate deals, the terms of the standard REIQ real estate contracts and the overall structure of the conveyancing process are both well capable of adapting to  Covid-19 issues. Under the standard REIQ contract, there are already specific clauses that will suspend the operation of a contract should events such as a Covid lockdown occur. Under those same terms, the seller is also given the right to terminate the arrangement if government restrictions are to continue for an extended period. House inspections can still legally occur and the only events which are currently not possible are the group gatherings associated with auctions and open houses. In terms of the conveyancing process, the innovation of e conveyancing which has now been in operation for some time, now permits every task of the conveyancing exercise to be conducted online with the one exception of witnessing of signatures but this task can still be easily completed in face to face meetings provided social distancing is used.

     

    Preparation of Wills and Enduring Powers of Attorney and the administration of Deceased Estates

    Although much of these tasks have historically been conducted through face to face meetings, all of the required tasks to prepare and sign a will, an enduring power of attorney or attend to the administration of a deceased estate, can be conducted via use of telephone or video conferencing and in extreme cases this too can extend the execution of wills and enduring power of attorneys documents although most law firms preference is to continue to have these documents executed in face to face meeting which are all still perfectly doable provided everybody respects social distancing and hand sanitising.

     

    General Legal Business and Consultations

    Again with the ability to conduct business via telephone or video conferencing and also via the use of email and online document sharing platforms such as drop box, the business of providing and receiving general legal services is well capable of continuing to be conducted amidst a Covid lockdown environment.

    So, the message generally from Zande Law and indeed the legal industry at large is that we are still open for business and do not foresee that any developments associated with Covid-19 will impact on our ability to provide services for you.

  7. Can you leave children home alone?

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    Can you leave children home alone?

    The twelve (or more) weeks of school holidays each year are undoubtedly a great time for family fun and relaxation. That same time of course often poses a real challenge for full time working parents. The solution often involves relying on others for support and maybe even considering leaving the children home alone for some of the time. Where the parents happen to be separated, these arrangements commonly draw conflict. So what are the rules?

    Firstly, under sec 364A of the Qld Criminal Code it is actually a criminal offence for a parent to leave a child less than 12 years of age alone for an unreasonable length of time without making reasonable provision for the child’s supervision. What is “reasonable” will of course depend on the circumstances. Leaving two children aged 10 and 11 alone inside the safety of their own home for an hour or so would usually be considered reasonable if they had appropriate safety instructions whereas leaving a 6 year old inside a parked car even for a few minutes whilst a parent ducks into the shops would almost always be considered unreasonable. With cars also, the ignition key must be removed if there are persons under 16 years of age still in the car and the ignition cannot be left running if there is no one over 16 years still in the car and the parent is more than three meters away.

    Any parent is free to make use of other persons to take up some of the supervision time provided that person is reasonably capable (both physically and mentally/intellectually) to perform all of the usual parenting roles which might be called for during that time. For short and controlled situations, a young adolescent of say 16 years or older might be acceptable but generally the expectation would be for an adult.  If the parents are separated, family court judges generally accept that parents should and must be allowed to draw on support networks to help with childcare so that the parent may hold down a job but where a parent is found to be making prolific use of third persons to care for children and those persons are either not trust worthy or are not familiar to and trusted by the children then judges certainly have the power to either limit the offending parent’s time with the children or require the parent to be personally available for the children’s supervision at all times when the children are set to be in that parent’s care.

    Michael Zande is the Principal of Zande Law Solicitors, with 30 years’ experience in practice.  Michael and his team have had extensive experience in conveyancing matters.  Please feel free to review our firm and staff profiles at www.zandelaw.com.au

    The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.