Tag Archive: parenting

  1. Step-Parent Adoption – Obtaining Adoption Orders

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    Where a step-parent has been performing the role of an absent/disinterested biological parent for a long time, the urge to “normalise” the relationship understandably holds strong.  One way to achieve this is through step-parent adoption. Part 1 of this series discussed the effect of an Adoption Order.  In this instalment we discuss the process by which an Adoption Order might be obtained.

    The process differs from State to State and time to time. At present in Queensland the following are the steps which must be taken:

    • First, to be eligible, the step-parent must have lived with the child and the remaining biological parent for at least 3 years and the child must be between 5 and 17 years of age.  De facto spouses of the same gender are ineligible to apply.
    • Next, an application must be made to the Australian Family Court for a “leave to adopt” Order. There are no hard and fast rules, but generally cases involving a long history of neglect from the exiting biological parent, a strong bond between child and step-parent and a general positive attitude (within the bounds of safety) to the possibility of the exiting biological parent re-entering the child’s life, are generally approved. The exiting biological parent must be served with the Application and has an opportunity to object, but there is also a process by which service can be dispensed with if the biological parent’s whereabouts are unknown.
    • With a “leave to adopt” Order in hand, an Application to Adopt is then lodged with the Queensland Department of Child Safety (DOCS). The exiting biological parent must sign the form to signify their consent to the adoption. If not, an Application must be made to the Queensland Children’s Court (QCC) for an Order to dispense with consent. The QCC is of course entitled to exercise its own judgement but generally, the evidence put to the Family Court to gain the “leave to adopt” Order should be sufficient.
    • Next, a sub department of DOCS, Adoption Services Queensland (ASQ) will provide the child with age appropriate information and counselling to ensure the child has gained an understanding of what adoption means and the alternatives. ASQ will then undertake an assessment as to the suitability of the prospective adoptive/step-parent. Typically this involves an interview and visit to the step-parent’s household where observations as to the nature and closeness of the child’s relationship with the step-parent can be assessed. ASQ will also consider whether alternative arrangements such as parental responsibility orders, or permission to change a surname might be a more desirable outcome. At the conclusion of the assessment, ASQ will complete a “suitability report” which is released to the parties. If the report concludes that adoption is “suitable” then the step-parent and remaining biological parent can apply back to the QCC for a “final Adoption Order”. The application must be served on DOCS and again on the exiting biological parent, although again, that service can be dispensed with if his or her whereabouts are unknown.  In the hearing of this final Application, the ASQ’s suitability report will be presented to the Court for its consideration. Again the QCC is entitled to exercise its own judgement but it would be highly unlikely for the Court to refuse an adoption where ASQ has determined suitability.

    In the next instalment, we discuss theoretically simpler/easier alternatives to formal adoption such as change of surname or Family Court Parenting Orders.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael 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.

  2. Step-Parent Adoption – Effect of an Adoption Order

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    Statistically, one fifth of separated families these days eventually transform to include a full time step-parent following the re-partnering of one or other of the biological parents.

    For some of these families, non-participation of the other biological parent may lead to the step-parent becoming the only “other” parent figure in the children’s life. Not surprisingly in these situations the family might seek to normalise the relationship by permitting the step-parent to legally assume all of the rights and responsibilities for the children as if he or she were their biological parent. Whilst this yearning might be seamless and natural, the legal processes by which it can be achieved feature some complexity. Effectively, the choices available to the couple fall into four broad categories as follows:

    • Adoption,
    • Parenting Orders,
    • Change of surname; and
    • Inheritance rights.

    The decision on which choice to make is best guided by considering both the process and effect of each option.

    Adoption: The effect of a formal adoption can be summarised as follows:

    • The step-parent may now be replaced on the child’s birth certificate in place of the exited biological parent and the child’s name may, if desired, be changed to the step- parent’s name by a relatively simple administrative process.
    • Decisions for the children’s long term and short term welfare such as schooling, medical procedures, discipline etc, will now be held exclusively by the remaining biological and new adoptive parent jointly, and the exited biological parent will no longer have any say.
    • Any previous Family Court Consent Order or Parenting Plan signed between the remaining biological parent and the exited biological parent are terminated and no longer of any force or effect.
    • The exited biological parent’s liability for payment of any future child-support and/or repayment of accumulated past areas in child-support are automatically discharged.
    • The step-parent is now fully legally capable of being named and holding a position of nominated guardian for the child in the event of the untimely death of the remaining biological parent and the exited biological parent will no longer have any automatic right to seek for the children to come into his/her care.

    It is important however, to note that even a formal adoption of a child by a step-parent does not absolutely and forever eliminate all and any rights that the exited biological parent might have. This is because the Family Law Act still recognises that any adult who has an interest in the care of a child has the right to come to the Family Court and seek Orders to permit that adult to participate in the child’s life. Under this broad sweeping provision therefore, it is conceivable that even a biological parent who has been exited out of parental responsibility via an Adoption Order would still have the standing to at least go to the Family Court and seek Orders albeit from a position of relative weakness.

    Parts two and three of this series will discuss the process by which an Adoption Order can be obtained and the effect and processes involved in the other options identified above.

    Links

    Part 2: Step-Parent Adoption – Obtaining Adoption Orders

    Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael 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.

  3. Long Distance Parenting

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    Considering the vast distances dividing Australia’s major population centres, the advent of high speed internet connectivity and the highly mobile nature of the Australian community as a whole, it is little wonder that the breakdown of family relationships bring many parents into conflict over where the now separated family is to live. Work commitments or career advancement opportunities after separation regularly put parents in need of moving to different towns or cities and many parents who previously agreed to move away from their home towns as part of intact nuclear family units understandably wish to move back for the support of extended family when the immediate family unit is no more.

    When the parents cannot agree on these relocation issues, the Australian Family Court has the power to decide who can stay and who can go, but beyond these primary issues there are many other things to consider:

    • Who pays for the cost of seeing the children – there is definitely no principle in Family Law to say that the parent who moves away (with or without the children) must be the parent who is obliged to pick up the cost of the children continuing to spend time and communicate with the other parent who did not relocate. What Family Law principles do say is that each parent is duty bound to do everything reasonably necessary to ensure that children continue to spend time and communicate with both of their parents and consequently it continues to be a responsibility of both parents to pick up the added cost of long distance parenting, but only to the extent that it is reasonable to do so. What is reasonable of course depends on the facts of each and every case.
    • Impact of higher costs of long distance parenting on Child Support Assessments – if the relocated parent wishes, they can have the Child Support Agency consider reducing the amount of their standard Child Support Assessment to take into account the cost that parent is now paying to see the children for:
      • transport
      • accommodation
      • telephone expenses; and
      • internet and the like.

    Like most things however, there are conditions:

    • the costs to be considered are only those costs which exceed 5% of the parent’s adjusted child support income;
    • food, clothing and entertainment costs are unable to be claimed; and
    • if the parent is only seeing the children between 52 and 127 nights per year, only transport costs can be considered. Accommodation, telephone and internet etc costs are all excluded.

    Justification for the 5% threshold works on the assumption that the cost would be of an insufficient magnitude to peak above the usual ebb and flow of the day to day household living costs. The justification for excluding food, clothing and entertainment etc costs stems from the fact that these costs are part and parcel with the usual costs the parent would have been paying for the children whether at home or away. The restriction to transport costs only for the 52 – 127 night care arrangement is not readily explicable, but possibly stems from a concern to ensure that child support payments needed for children’s day to day sustenance costs such as food and clothing in the primary parent’s household are not gauged and diverted to pay for expensive hotel rooms.

    Deductions for these costs from child support are not automatic, the claiming parent must make application to the Child Support Agency for a review of his/her assessment via the standard child support review process. In adjudicating on this decision, the Agency will give the other parent a right of reply and will require full documentary evidence to support all of the claim and again, will only allow those expenses which are considered to be reasonable in all of these circumstances.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael 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.

  4. Supervised Contact of Children

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    Introduction

    The area of residence and contact litigation is often fraught with highly emotional opinion.  When involved in such litigation it is important to consider first and foremost the best interests of the children.

    According to law in Australia, the children have the right of contact on a regular basis, with both their parents and with other significant people in their lives, so far as it does not overlap with their best interests.  The Court is empowered to make orders  only when it is satisfied that it is in the best interest of the child to do so.  Such an order may include providing that a party have contact with a child or children only if that contact is supervised by another person.

    What is Supervised contact?

    Supervised contact is the situation where the non-resident parent (the parent with whom the child does not live) has contact with the child under supervision of another person.  It is the responsibility of the supervisor to ensure that the best interests of the child are protected whilst on a contact visitation with the parent or person.

    When can a Supervised Contact Order be made?

    Before the Court makes or approves an Order it must be satisfied that to do so will be in the best interests of the child.  Such a situation may include that in which there is a risk to the child that he or she may be abducted on contact, or there may be some risk that the child may be subjected to violence while with the contact parent or person.  It can also include those situations where the contact parent has  deficient parenting skills or requires the aid of another person to care for the child.  For example, where the parent of a  baby is a young man or woman who is not  confident or able to care for the child by him or herself.

    When will a supervised contact order not be made?

    1. The Court will not make a supervised contact order if it is satisfied that there is no risk to the best interests of the child if such an order is not made.  If the Court is not convinced of the reasonable need to ensure the safety of the child to have contact supervised it will not make or approve the order.  For example, the Court will not make an order for supervised contact if it is satisfied that the only reason the resident parent is making the request is to annoy the other parent or cause them difficulties.
    2. If contact, albeit supervised, is still contrary to the child’s bests interests.

    How restrictive is a supervised Contact Order?

    Supervised contact orders can be extremely varied.  Depending on the particular set of circumstances they can be either very flexible or very rigid.  An example of the flexibility of a supervised contact order may be allowing a young father to have contact with his young baby under the supervision of the father’s mother whilst at  their home.  An example of the rigidity of a supervised contact order may be requiring a mother to have contact with the child in a specially designated care facility under the supervision of a registered nurse.  Clearly, the level of supervision will greatly depend on the individual case.

    Is a Supervised Contact Order final?.

    An Order for supervised contact is usually made for a specific period of time with the aim of eventually nurturing a relationship between the child and other parent to the extent that supervision is no longer required.  If Orders have previously been made for supervised contact and the Orders do not provide that the supervised contact was to end at any specified period of time the contact parent can make a new application to the Court to have the Order varied.

    Who can be a supervisor?

    As long as the person who has agreed to be a supervisor has been found by the Court to be appropriate in the circumstances anyone can be a supervisor.  The Court cannot nominate someone to be a supervisor if they do not want to.  The prospective supervisor must be aware that should they agree to become supervisor they may be required to give evidence in Court should any  disagreements arise out of the period of supervised contact.  It can also be an extensive commitment of time.  It is possible to have more than one supervisor appointed but all supervisors must be approved by the Court and specified in the orders as supervisors.

    There is always the possibility that a child may grow afraid or suspicious of the other parent if supervised contact is ordered for no good reason, thus hampering  the ability of the child and the parent to develop a warm and loving relationship.  On the other side of the coin, however, it may be just as harmful to the child to allow them to go on contact with the non-resident parent without proper supervision.  The decision of the Court to provide for supervised contact will therefore need to be based on objective and reliable information and evidence.

    If you are concerned that supervised contact is necessary in your case for the best interests of the child, or conversely, that supervised contact will not be in the best interest of the child, you should talk to Michael Zande an Accredited Family  Law Specialist who will be able to critically analyse your situation and give you the best advice.

    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 based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.