Childrens Issues

Q. Can parents enforce their religious belief on their children?

 

Where parties have equal shared parental responsibility, and providing nothing as stipulated in any parenting plan, agreement or Court Order, both parents are able to expose their children to a religion of their choice.

If the matter of religious instruction cannot be agreed between parents, a Court will then be required to intervene and decide, based on what is in the child’s best interests, as to how much or how little a child may be exposed to or involved in any particular religious instruction, attendance, celebration or ceremony.

In the case of Macri (2010) the Mother wanted to raise the children in the Jewish faith and have them perform certain traditional Jewish ceremonies. The Father was Catholic and thought that the children should make their own decision, when they are old enough, about what religion to follow. The Court agreed with the Father and prevented the Mother from involving the children in certain ceremonies, however, the Mother was still allowed to expose and generally involve the children in the Jewish faith.

Q. The father of my child has requested a paternity test, do I have to agree?

 

Either parent can, in certain circumstances, approach the Court to seek an order that paternity testing be carried out. When a child is born there are presumptions surrounding who the father of the child might be. We would suggest that you contact us, before you either agree or disagree to have paternity tests performed, so that you are aware of the possible consequences of either decision.

Q. Does shared care mean equal time?

 

When discussing arrangements for children there are 2 concepts. “Parental Responsibility” which relates to the rights and responsibilities each parent has about making decisions for the children and concerning the general care of their children. Secondly there is the issue of how much “time” each parent should spend with their children (this used to be called “custody and access”) and this is determined according to what is in the children’s best interests. If it has been agreed or a Court has decided, that it is in the best interests of the children for their parents to have equal shared responsibility, a Court will then first consider an order for equal time. In considering equal time the Court must take into account what is in the child’s best interest and in doing so must specifically consider a whole range of specific issues – such s the age of the child, the relationship between the parents, issues of practicality and location and many others. Each case will be decided on its own circumstances. To get further advice about these issues, contact us.

Q. Can I change my child’s name without the other parent’s consent?

 

Where both parents are recorded on the child’s birth registration certificate and are still alive, the consent of both parents is normally required to change a child’s name. In certain circumstances a single parent or legal guardian of a child can make an application to Court to change a child’s name. Some information relating to changing names can be obtained from www.justice.qld.gov.au, but for full advice about all your options, you can contact us.

Q. What will happen with the children if either of us leaves the house?

 

If one party leaves the matrimonial home it does not mean that they relinquish any parental rights or responsibilities in respect of the children. Arrangements will have to be made for each parent to have time with the children and those arrangements must be based on what is in the best interests of the children. To assist with arrangements for children when parties separate, the services of a Family Dispute Resolution Centre can be used. To help you consider what arrangements might be suitable for you, contact us or contact the Family Relationship Centre Gold Coast, on (07) 5656 1700.

Q. Can I claim Child Support for my child once they turn 18?

 

Once a child turns 18, they become an adult and can bring Court proceedings in their own name. However, usually it is the parent with whom the child is living that will approach Court.

A court will only consider an application for child maintenance for a child over 18 if it is to enable the child to complete their education (usually tertiary education) or if the child is mentally or physically disabled.

Once a child turns 18 or finishes year 12, the Child Support Agency’s involvement ends, therefore, these type of claims are made through the Family Court and not through the Child Support Agency.

Contact us to discuss whether you may have a claim for child support.

Q. What if we can’t agree on whether our child should be immunised?

 

What if we can’t agree on whether our child should be immunised?

The Family Court of Australia was recently asked to decide whether or not a child should be immunised, in circumstances were the mother and father were unable to agree. The Facts were:

    • 1. The parties lived together from June 2004 until late 2004.
    • 2. There was one child of the relationship, born in May 2005.
    • 3. The parties entered into Consent Orders in April 2006 which provided that the child was not to be immunised.
    • 4. When the child had reached 6 years of age and had not been immunised, the father applied to the Federal Magistrates Court for orders to facilitate the child being immunised.

The mother’s concerns were based on her own adverse reactions to immunisations as a child, and also as a result of reactions the child had already had. The mother feared that the child would become sick or disabled if she was immunised.

The father was concerned in addition to the risk to the child of contracting various infections, if the child was not immunised, that child may need to be withdrawn from school, or from visits with her father, her step mother and any future child they may have.

The mother relied on the evidence of her general medical practitioner, who was able to say that the mother had consulted him and discussed vaccination on various occasions with him, and had full knowledge of the pros and cons of vaccination and had decided not to vaccinate the child. Various doctors gave evidence as to the likelihood of the child contracting various infections.

At the first instance, the Orders were made in the Federal Magistrates Court in December 2010 that the child undergo a course of immunisations for Measles, Mumps, Rubella, Diptheria, Tetanus, Pertussis, Varicella and Human Papilloma Virus.

The mother appealed.

On appeal, the Full Court of the Family Court of Australia allowed two further doctors to give evidence (which can only be allowed in special circumstances). One of these doctors was able to give the court a better understanding of the risks to this particular child and steps that might be undertaken to identify and minimise any risks for the child. The Court allowed the appeal, set aside the Orders requiring the child to undergo immunisation and referred the matter for a rehearing.

As part of their decision, the Full Court specifically noted that the importance of having best expert evidence available to the Federal Magistrates Court upon which to base a decision and referred the matter for a rehearing.

If you are having difficulties in reaching joint decisions on important matters affecting your children, contact us to discuss your options and what might best suit your circumstances.

Q. What is a parenting plan?

 

A parenting plan is an agreement which sets out the parenting arrangements for your child and can include:

    • Who a child will live with (“custody”);
    • The time the child is to spend with each parent (“access”);
    • How a child will communicate with the other parent;
    • Arrangements regarding the welfare and future development of the child.

If you and your partner conclude a parenting plan you must be aware that for it to be recognised by a Court it must be in writing, dated and signed by both parties. It must also be made free from any threat, duress or coercion.

A parenting plan is not a legally enforceable agreement and there are other ways to document parenting issues in a legally enforceable manner. We would suggest that you contact us to find out if entering into a parenting plan is appropriate for your circumstances.

Q. If I die who will be the legal guardian of my children?

 

In simple terms, anyone who can demonstrate they have “an interest in a child”, whether that person is a blood relation or not, can apply to the Family Court for orders for that child to live with them, or for the child to spend time with them. That is the case whether the children’s parents are alive or deceased and it continues to be the case after the death of one of their parents.

Usually the person with whom a child lives after the death of a parent, in the immediate time subsequent to that death, is usually decided by issues of convenience and practicality. Whether or not those arrangements are in the long term best interests of the child is something that is left to be determined by the relevant relatives and perhaps other interested people.

You can appoint a guardian for your child under your Will and that appointment may well be effective to assist in ensuring that directly after your death, your child is cared for by the person nominated by you under the Will however it has no legally binding effect and is not something that can be enforced.

By appointing a guardian for your child in your Will, you make your wishes in that respect known and you do give some guidance to your executor, to your child’s surviving parent and to the Court if that becomes necessary about where you think your child’s best interests lie.

Q. Is there an automatic rule that children have to live with us 50/50 now?

 

    • There is no automatic shared care rule.
    • If the Court determines that you should have joint parental responsibility then the Court must consider as a first option an equal time arrangement.
    • In considering an equal time arrangement, the Court must then consider whether or not an equal time arrangement is in the best interests of your child in your family and in your circumstances. There is a long list of factors which the Court must consider when making a decision about what is in the best interests of your child including things like how well do you as parents communicate with each other, how closely do you live to each other and to the children’s school, how available are each of you to provide for the children’s needs and many more.
    • There is never a guaranteed answer to the question about how much time a Court would order children to spend with each parent and you need to obtain specialist legal advice about what might be the outcome for your children in their circumstances.
Q. What do I do with regards to international child abduction?

 

Australia, along with 80 other Countries worldwide is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

Being a signatory to that convention means that countries agree on certain rules and procedures to ensure children are returned to the country of which they have been a “habitual resident” if they are removed from that country in a way that interferes with the “rights of residence” of the parent who remains behind.

Assistance for parents whose children who have been removed from their country of habitual residence can often be assisted by the “Central Authority”, a government body set up by all “signatory countries” to assist in the return of children.

The Federal Attorney General’s Department oversees the implementation of the Hague Convention and works in conjunction with your private lawyer and the Family Court here in Australia and its overseas equivalent to assist in the return of children wrongfully removed from Australia.

Our lawyers at Cassandra Pullos lawyers have been involved in many cases of International Child Abduction and have the expertise necessary to assist you in this area that often requires immediate and expert attention and action. Contact us and we will be able to assist you with the return of your children.

Q. Do I need consent for international travel arrangements?

 

If you have an application before the Court in relation to any issue concerning your children or if there are orders in place in relation to any issue in relation to your children then you must obtain the consent of the other parent, in the appropriate form, before taking your child out of Australia, even for a short holiday and even if the other parent has agreed verbally.

Failure to obtain that consent, in the required form, could result in a fine, a jail sentence or result in you being stopped at immigration and the children prevented from leaving the country.

Q. Do we have to go to court about our children?

 

Before going to Court, most parents will be required to undertake a specific type of mediation called Family Dispute Resolution (FDR) with a certified Family Dispute Resolution Practitioner. The Federal Government has set up Family Relationship Centres in many areas across the country to provide this service to parents. Private Family Dispute Resolution Practitioners (FDRP’s) are also available to be engaged by parents. We can refer you to a panel of FDRP’s, just contact us.

There are exceptions to this requirement for Family Dispute Resolution, for example if there is a history domestic violence. We can advise you whether these exceptions might apply to you and what alternatives might be available to try and resolve your dispute if FDR is not appropriate to your circumstances because, for example, of issues such as the existence of domestic violence.contact us for the advise you need about FDR.

Q. Who can apply to the court in relation to children?

 

Regardless of whether children are born to parents who are or have been married, living in a defacto relationship or have never married nor have never lived in a defacto relationship, it is the principles set out in the Family Law Act that apply to all children and all parents, as well as to grandparents or other people who might have a legitimate interest in a child. It will be the Family Court or the Federal Magistrates Court that will decide your case in relation to your children, regardless of the status of your relationship as parents.

Grandparents, and sometimes other relatives or people unrelated but who have an interest in the wellbeing of a child also want to ensure they maintain their relationship with a child and we can advise grandparents and others about their rights and responsibilities as well.

In some circumstances relatives, as well as unrelated interested persons can ask the Court to make an order that children live with them, either permanently or on a temporary basis. All the solicitors at Cassandra Pullos Lawyers have the experience necessary to bring these matters before the Court and to advise you about your individual circumstances, contact us for advice.

Q. Working out how much time each parent receives?

 

There are many factors the Court is required to take into account in determining what is in the best interests of your children and there are also many misconceptions about how those factors are worked out and the rules that apply.

One of the most common misconceptions is that shared care, or equal time, is automatically applied to every family. There is a requirement that the Court consider the possibility of shared care in defined circumstances as a first option but in considering that arrangement as a first option the Judge must look at factors such as practicality, the age of the children, the relationship between the children and their parents and the overriding consideration of what is in the child’s best interests.

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