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Parenting Preparation during the Coronavirus Pandemic

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The Coronavirus pandemic (COVID-19), whilst creating special challenges for all, may particularly affect separated or divorced parents with young children. With the situation rapidly evolving, the long-term outcomes remain to be seen. In light of such uncertainty and the extra stress associated with the COVID-19 pandemic, it can be hard to manage stress for both parents and children alike. However, the following suggestions below may assist separated parents in working through this difficult time:

  1. Adapt and Communicate

In light of COVID-19 and the surrounding anxiety, parents may become angry with the decisions of their ex-partners regarding the children. However, during this time it is important to ensure that parents stay focused on the best interests of their children. Whilst difficult, this will require compromise and polite communication between parents to ensure that needless conflict is avoided. This is a time when the last thing children need to see is their parents fighting about them.

As the impact of COVID-19 on Courts remains unknown, it is uncertain if the Courts will suffer delays. It may be the case that the Courts will have limited availability, with dispute resolution services becoming scarce. As such, separated parents must attempt to resolve issues and manage matters between themselves to avoid long delays. If you have not already done so, it may be useful to consider discussing personal policies regarding the children’s care with your ex-partner. This may include discussing:

  • How time with the children will be divided should school closures occur?
  • Where will changeover occur? Do you have a plan for another location should your current venue become inaccessible?
  • How will the children’s safety and health be maintained?
  • How will you follow government advice about large gatherings such as weekend sporting events?
  • What activities are you both happy for the children to engage in during holidays or otherwise?
  • How you will discuss this scary matter with the children so that they are informed but not panicked?

In certain situations, it may also be worthwhile implementing a parenting plan between yourself and the other parent to address the above concerns, and more, quickly without the need to go to Court. Parenting Plans provide flexibility and can allow for arrangements between parents to be changed as the circumstances require. However, having a Parenting Plan in place does not mean you can neglect any obligations under existing Court orders or agreements.

If you are unsure about how to create a Parenting Plan or are having trouble communicating with your ex-partner, CD Lawyers may be able to assist you. For more information please contact our office.

  1. Continue to meet your obligations

Whilst we are currently living in unpredictable times, that is no excuse to neglect your obligations under a court order or agreement regarding your parenting matter. If for some reason you are unable to meet your obligations, say because arrangements are unclear or because of extenuating circumstances (e.g. school closures or quarantine), you must attempt to find a solution. At the very least, it is essential that where a change is anticipated, you communicate with the other parent providing them with ample notice and information.

If you are having difficulty meeting your obligations CD Lawyers can assist you.

  1. Stay healthy and follow government guidelines

Ensure that you and your children practice healthy hygiene habits to minimise the risk of spreading germs and viruses. Frequently and thoroughly washing your hands, as well as practicing responsible social distancing will reduce the risk of illness both to your family, friends, and others.

Setting an example for children is the best method of ensuring they learn these practices. As such you should let the other parent know you are following these healthy practices to ensure consistency across households.

For more information and access to the Government guidelines please visit:

https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others

  1. Be Patient, Positive and Compassionate.

It is important to understand that in these coming months COVID-19 will bring special challenges. This situation will not be resolved overnight, but will require long term changes to the way we work, socialise, communicate and parent.  Despite the stress and anxiety, it is important to think about how you would like the other parent to engage with you about parenting issues and to reciprocate that engagement.

Understand that a certain degree of flexibility will need to be maintained with the other parent to ensure the children are taken care of. The current events are unprecedented and unplanned for. However, maintaining open and positive communication with the best interests of the children in mind will likely reduce conflict and ensure you can focus on your family and not on costly litigation. However, if the other parent is being unreasonable, and you have followed the required pre-action procedures, it may be necessary to issue court proceedings, and we can advise you on this.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Are you legally prepared for COVID-19?

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Whilst we prepare for many events in our lives, we often neglect to discuss the difficult ‘what if’ topics like passing away suddenly. Unfortunately, for many people, this means they leave their family without information and guidance about what to do when they die. Without adequate preparation, your loved ones may be left exposed to drawn out litigation required to settle your estate. As such, it is importantly to ensure you are legally prepared for the unforeseen to prevent further hardship to your family.

On the 11th of March 2020, the World Health Organisation (WHO) declared the Coronavirus (COVID-19) a pandemic. This is just one example of many unforeseeable global issues that may have significant implications for those who are legally unprepared. It is vital that people of all ages ensure that they are prepared for the legal ramifications of death or illness. Please make sure that you stay up-to-date and comply with all government directions and policies regarding COVID-19.

If you have not already done so, you should ask yourself the following questions to see if you are legally prepared for the unforeseen:

Do I have a Will and is it up to date?

No one wants to be worried about their assets from a hospital bed, as such it is vital to have a Will prepared. A Will is a legal document that sets out how you wish for your assets to be distributed after your death. It forms part of an estate plan and is an important strategic step in preserving your property for your family or other beneficiaries.

Passing away without a Will can place a significant burden on your family. It can impose onerous legal fees on your loved ones, and may result in your assets being distributed by the Supreme Court of Western Australia. Having a Will may ensure that your estate is dealt with promptly and efficiently and that your family is not left to fight drawn out legal battles.

Simply put, a Will properly drafted by our lawyers is the best way to have your assets dealt with in accordance with your wishes after your passing. A Will is designed to reduce future complications and reduce the likelihood of disputes arising from the interpretation of your Will between trustees, beneficiaries, and other parties.

Do I have an Enduring Power of Attorney?

An Enduring Power of Attorney (“EPA”) allows you to appoint someone you trust to make property and financial decisions on your behalf in the event you lose the legal capacity to manage your own affairs. This will include managing your money and real estate. An EPA does not permit an attorney to make personal, medical and lifestyle decisions.

In light of events such as the COVID-19 pandemic, the benefits of an EPA are clear given the chances of hospitalisation or isolation. In such an event, an EPA would allow your appointed attorney to undertake a range of tasks  on your behalf when and if appropriate to do so. These may include everyday tasks, such as paying your bills and signing documents that require urgent attention, or more complex tasks such as dealing with your property (i.e. selling property) during your recovery.

Do I have an Enduring Power of Guardianship?

An Enduring Power of Guardianship (“EPG”) allows you to appoint someone to make personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making these decisions yourself. These decisions include, but are not limited to, where you will live and what medical treatment you will receive.

With events such as COVID-19 having potentially life-threatening health impacts, it is vital to ensure that you have a guardian, appointed via a legally enforceable EPG. Your appointed guardian should understand your health care plans, directives and wishes should you become incapable of dealing with your own health care decisions. You must also ensure that if you have already appointed a guardian, they know of their appointment and are willing to act in such a capacity.

Where no attorney is nominated via an EPG you risk having the Public Advocate, which is a government body, appointed to assume responsibility over your health care decisions. This means that should you become mentally, or physically incapacitated without having executed an EPG, your family may not have sole control over your health care decisions.

Did you know that your Superannuation does NOT form part of your estate by default?

Superannuation is not considered an estate asset. A super fund is a type of trust meaning that it is not legally “owned” at the time of death. This means that on death it does not flow to the estate of the deceased automatically. Instead, without a binding death nomination a trustee of the super fund will pay out ‘death benefits’ in accordance with the governing rules of the fund and relevant law. This means that if you arrange to leave all your super to a child or spouse, this might not be honoured upon your passing.

However, an up-to-date Binding Death Nomination can be used to override the trustee’s discretion and ensure that the arrangements you have made during your lifetime are honoured. Simply put, a Binding Death Nomination is a legally binding nomination allowing you to advise the trustee who is to receive your superannuation benefit upon your passing and how to distribute your benefit.

Note, Binding Death Nominations should be reviewed regularly, as they can lapse in binding force after a period (usually 3 years). If you do not have a Binding Death Nomination or have not reviewed it in recent years, we advise that you talk to one of our lawyers regarding your options.

Do I have all my important documents in order?

You should ensure that copies all your important documents are stored together with your Will. Usually, after a person passes away, that person’s family will struggle to locate all relevant documents, passwords, and keys. To assist your family, you should prepare a list detailing your:

  • assets and liabilities;
  • access codes and passwords;
  • the location of keys and other documents i.e. bank account details, superannuation details etc.; and
  • details of your financial advisor, lawyer, accountant, insurance company and similar entities.

It is important to share with someone you trust the location of that list.

Do I need to nominate a guardian for my children?

If you are a parent of a child under 18, it is important that you know who will take care of your children if anything were to happen to you. Generally, whilst care of your children would flow to the other parent, it is worthwhile determining who would assume care of your children in the unfortunate event that both you and the other parent have passed on.

Fortunately, s71(3) of the Family Court Act 1997 allows you as a parent to appoint a testamentary legal guardian for your child via a Will or Deed. The appointment of a guardian will only take effect upon the death of the last surviving parent or legal guardian of the child. The appointment ends when the child reaches the age of 18 years. If you are unsure of who will take care of your children if you and the other parent are no longer, it may be time to speak to one of our lawyers.

If you have not yet prepared the above documents, you leave your family open to the potential of costly litigation. Further, there is no guarantee that your arrangements would be honoured upon your passing if you do not have a legally enforceable Will.

 Contact CD Lawyers today, and we can assist you and your family in ensuring you are legally prepared for the unforeseen.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Relocation Orders

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Following separation proceedings, it is often the case that each parent will need to find somewhere to live. This may involve one parent wanting to move with their child to another city, state or country. Under the Family law, moving a child away to another city or country is known as relocation. The relocating parent can ask the court for a relocation order, which will allow them to move with the child. The other parent can ask for an order to stop the relocation of their child. Where a proposed move will significantly prevent or limit a child from spending time with a parent or another significant individual a court may refuse a request to relocate a child.

When assessing any proposal bought before it to relocate the residence of a child, whether it be internationally or otherwise, the court will likely have regard primarily to the interests of the child. When determining this, the court generally employs a three-stage process of analysis.

Firstly, the court will identify the nature of both parties’ proposals regarding where the child should live.

Secondly, the court will take into account the relevant considerations established in section 60CC of the Family Law Act 1975. The court will look at the advantages and disadvantages of each of these considerations in respect to each proposal that is put forward by the parties. Whilst the considerations of the court are extensive, the court may consider:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents;
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
  3. the views expressed by the child;
  4. the nature of the child’s relationship with each parent and other persons, including grandparents or relatives;
  5. the extent to which each of the child’s parents has participated in the long-term issues relating to the child, spent time with the child and communicated with the child;
  6. the likely effect of changes to the child’s circumstances; and
  7. the practical difficulty and expense associated with having a child spend time and communicate with a parent, and whether such difficulty will impact a child’s personal relationship with the parents.

Finally, the court will then identify the party’s proposal which is preferred and make the relevant relocation orders. The decision is often made having regard to which proposal best ensures the child’s interests.

Do you need Legal advice concerning a relocation orders? Our lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment today.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Reversing a transfer of property or assets during Family Court proceedings

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During a separation it is common for the Family Court to make property settlement orders to ensure that the distribution of assets between the parties is ‘just and equitable’. However, there are instances where property has been transferred or disposed of by one party to the separation proceedings.

In some instances, section 106B of the Family Law Act 1975 operates as an anti-avoidance provision. It functions to stop parties from entering transactions which hinder or circumvent Family Court orders during property settlements. Essentially it allows that the court can reverse transactions including the transfer of land in certain situations. Section 106B allows a court to do this when:

  1. a transfer of land occurs during family court proceedings; or
  2. during a time when the proceedings were reasonably anticipated; and
  3. the disposition is likely going to defeat existing or anticipated court orders.

The operation of section 106B does not require that the party selling the asset specifically intended to defeat the existing or anticipated orders of the court. It is merely enough to show that the sale or transfer of the asset would have the effect of doing so. For example, the reduction of the available pool of assets in a property settlement may be enough to satisfy a likelihood that a court may not be able to make adequate orders. It should be noted that section 106B does not only apply to sales of property or assets but also to gifts and the issuing of rights which attach to interests in a company or a trust.

For example, if around the time of separation an ex decides to sell their assets or gifts them to a family member the court has the power to reverse that transaction. These situations are complicated by instances where a third-party bona fide purchaser is involved. That is someone who purchases an asset from a party for value without having knowledge of any other parties’ interests. Whilst the court will generally have regard to the interests of a bona fide purchaser and can make orders to protect them, this does not provide them with an absolute safeguard.

The Family Court still has the discretion to make orders reversing a transaction which negatively impacts a just and equitable outcome. The Court is particularly minded to reverse transactions which are clear ‘shams’ attempting to defeat the operation of the Family Law Act. When dealing with a bona fide purchaser, the Family Court may consider whether at the time of the disposition the purchaser:

  • was aware of the other party’s interest;
  • should and would have been made aware if they made all the proper enquiries; and
  • whether the disposition would be likely to defeat the claim of the party in whose favour the order was existing or anticipated.

In exercising its discretion to set aside instruments and dispositions, the Family Court may also take into account the length of time between the disposition and the proceedings, and between the discovery of the disposition and the proceedings to set aside the disposition.

Parties to a dispute should use caution when dealing with property interests in the wake of Family Court separation proceedings. Third-parties who suspect impending family law matters should also take care when purchasing property and ensure all proper enquiries are made.

As well as section 106B of the Family Law Act 1975, there are several other ways that this may be dealt with.

Do you need Legal advice concerning a family law property settlement? Our Lawyers can provide you with comprehensive legal advice. Please contact our Office for an appointment.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Disclosure in Family Law matters

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‘Disclosure’ refers to the process where parties provide each other with copies of all the relevant documents in their possession or control. Each party in a family law dispute has a continuing duty to ensure full and frank disclosure until proceedings are finalised. The existence of this duty means that you must disclose information that is relevant, even if the other parties do not know it exists. The ongoing nature of the duty means that you are also required to provide updated information where circumstances change.

The duty to disclose in family law applies to both parenting matters and financial disputes. The types of information that may be disclosed varies depending on the matter type. However, generally disclosure can include paper documents as well as documents stored by some other means (i.e. on a computer or storage device).

In parenting cases, the information to be disclosed may often depend on the specific issue in dispute. Relevant information in these cases will often include information which provides evidence of the parenting capacity of each party. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs or even diaries. Additionally, where expert reports are obtained in relation to a parenting case, you may also be required to give a copy to the other party and the independent children’s lawyer (if one has been appointed).

In property and financial matters, the duty may require disclosure of any information as to earnings, interest, property or other financial resources which you as a party have access to either directly or indirectly. The specific documents required may include:

  • copies of Pay slips, Group Certificates and/or Centrelink statements;
  • copies of tax returns, estimates or assessments;
  • details of assets that you own or are in your possession, including valuations or appraisals of these assets;
  • copies of statements from any of your bank or building society;
  • copies of statements from any credit card/s and any loans;
  • superannuation statements; and
  • information about any trust where you act as an appointor, trustee, director or shareholder.

Disclose of information regarding the disposal of assets may also be required, especially where the disposal occurred during the year prior to separation or since separation. Disposal transactions not only include transaction were assets are sold, but also those where assets transferred, assigned or gifted.

Failure to provide full and frank disclosure or providing false disclosure may incur severe penalties. The court may in such a situation:

  • refuse to give you permission to use information or documents in your case;
  • stay or dismiss all or part of your case;
  • order costs against you; and
  • fine or imprison you on being found guilty of contempt of court for not disclosing documents.

Ultimately, the duty to disclose is not designed to place an unnecessary burden on either party. Rather, it aims to help parties focus on the genuine issues of their matter, reduce cost and encourage settlement.  Whilst the circumstances are limited, there are situations where not all information requested needs to be provided. In some cases, documents may be exempt from disclosure on the basis of privilege or relevance to the dispute.

Do you need legal advice concerning your disclosure obligations to the family court? Our lawyers can help you understand your rights and responsibilities and how the law applies to your case. Contact our Office for an appointment today.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Can my ex lodge a caveat on my property?

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Caveats allow any person with a legal or equitable interest in land (‘caveator’) to lodge a caveat against the property of another person (‘owner’). Caveats are formal notices which are recorded against the title of a property and are used to protect an interest in that property. Essentially, this allows the caveator to suspend any further dealings with a property until there has been a reasonable opportunity for the rights of the parties involved to be ascertained by a court. This means that caveats can achieve the same function as a statutory injunction without the difficulties associated with approaching the court to obtain them.

In Western Australia, caveat applications are lodged through Landgate. The applications must include detailed information regarding:

  1. the description of the land/property;
  2. the type of caveat required;
  3. the applicants’ details; and
  4. a description of the nature of their claim.

It is important to note that caveats cannot be lodged to protect contractual or personal rights but can only be lodged to protect property interests in land. Additionally, in order to be able to lodge a caveat, a caveator must be able to demonstrate their legal or equitable interest. For example, these interests may include:

  • a contract for the sale of land;
  • an option to purchase the land;
  • a mortgagee or equitable mortgagee;
  • a charge over the land;
  • the benefit of an easement;
  • a lease over the land; or
  • an unregistered interest.

 Therefore, merely having been in a marital or de facto relationship will not generally alone give an individual an interest in their partner’s land. However, in circumstances where an ex-partner holds a beneficial interest under a constructive trust a caveat may still be lodged. In such a case, it must be proved that:

  1. there has been a joint relationship which has broken down;
  2. the owner of the property has benefited from the contributions made by the other party for the purposes of the joint relationship;
  3. it was not specifically intended that the property owner would retain those benefits without accounting to the other party; and
  4. it would be unconscionable for the property owner to deny that the other party has an equitable interest in the property.

 For example, a de facto husband purchases land in his name and lives there with his de facto wife.  During this time together the couple pools their financial resources to pay for the household expenses, which include the mortgage instalments on the property. In such a case, despite the property being owned solely by the husband, the wife’s contributions to the mortgage might be considered to create a constructive trust over the property. This may give her an equitable interest over which a caveat could be lodged. A court order may be required first to properly lodge a caveat.

Essentially, in situations where the caveator can show that they made contributions towards the property, such as paying the mortgage or paying for renovations, this may be enough to create an interest that can be protected via caveat. It is especially important to obtain legal advice before attempting to lodge a caveat, to ensure you have a caveatable interest and that the proper procedure is followed. Likewise, if you want to defend against a caveat being lodged, you must obtain advice as to the legality of the caveat and what to do next.

If no valid legal or equitable interests exist, then the owner of the property is entitled to have the claim removed. Where an application is made without a valid interest, indemnity costs may be ordered against the party who lodges a caveat over a property even if it is subsequently withdrawn.

Do you need legal advice concerning a caveat on your property? Our lawyers can provide you with comprehensive legal advice. Contact our Office for an appointment today.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Can the Family Court order a search if my ex is hiding money?

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“Anton Piller orders”, which were previously known as “search orders”, are a form of injunctive relief made by a Court compelling one party (the Respondent) to allow another party (the Applicant) to enter a property to inspect, remove or make copies of documents or other items. If a Respondent fails to comply with such an order or attempts to obstruct its execution, they may be found guilty of a contempt of court.

 Anton Piller orders are extraordinary orders, designed to obtain and preserve vital evidence pending the final determination of a proceeding in a case where it can be shown that there is a risk that, if forewarned, the Respondent will destroy or hide the evidence, or cause it to be removed from the jurisdiction of the court. These orders are often also sought in the Family Court where the Respondent is acting dishonestly. For example, if they are attempting to hide assets or holding secret bank accounts in an attempt to influence the determination of assets to be divided between parties in an action. As such, these orders are often made ex parte or without notice to the other side involved in trial.

However, due to the intrusive nature the court will generally only grant such orders in extreme cases where it is absolutely necessary so that justice can be done between the parties. In order to be granted an Anton Piller order, a party must satisfy the court of four main requirements:

  • The Applicant can demonstrate a strong prima facie case: you have emails, messages or other evidence showing the Respondent has hidden assets of substance;
  • The potential or actual damage suffered by the Applicant is serious: if the assets or documents were not disclosed, you as the Applicant would lose a large sum of money under a settlement;
  • There is clear evidence of possession by the Respondent of incriminating documents or things; and
  • There is a real possibility that the Respondent might, if he or she became aware of the application by the Applicant, destroy the materials.

In addition to this, Rule 14.04(3) of the Family Law Rules 2004 requires that an application to the court for such an order be supported by an affidavit which includes:

  1. a description of the document or property to be seized or inspected;
  2. the address of the premises where the order is to be carried out;
  3. the reason the Applicant believes the Respondent may remove, destroy or alter the document or property unless the order is made;
  4. a statement about the damage the Applicant is likely to suffer if the order is not made;
  5. a statement about the value of the property to be seized; and
  6. if permission is granted, the name of the person (if any) who the Applicant wishes to accompany the Applicant to the Respondent’s premises.

In order to ensure such an order is successfully awarded, an Applicant must avoid all potential abuse of procedure ensuring that all the above requirements imposed are strictly observed.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

What is a Single Expert Witness?

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The Family Court may from time to time require an expert to provide an opinion on a specific issue or dispute via a report. In such instances, the court prefers the appointment of only a Single Expert Witness (SEW), rather than having more than one expert give evidence.  This is often done to minimise expenses and ensure that disputes are resolved quickly and efficiently.

SEW’s can be appointed in both matters involving financial issues or children’s issues.

SEW IN FINANCIAL MATTERS

In regard to financial issues, SEW’s will likely be appointed where the valuation of a particular asset,liability or division of a net asset pool is problematic. In such cases, the SEW may be a qualified accountant, valuer, mortgage broker, financial advisor or other relevant professional.

SEW IN PARENTING MATTERS

An SEW is often appointed in matters involving child care disputes where there is some risk to the child(ren), family violence or welfare concerns. In these instances, the SEW may be requested to provide a report on the behaviour of the parents or guardians and their relationships with the children. In these situations, the SEW may be a child psychologist, social worker, psychiatrist or other relevant professional.

APPOINTMENT OF A SEW

In order to appoint a SEW, the parties to the dispute may jointly agree on a particular expert, so long as the SEW is knowledgeable and qualified to provide an opinion on a particular issue. Alternatively, the court itself is able to make orders on application, or upon its discretion, to order that a SEW be appointed.  When the Family Court appoints a SEW they will often consider:

  1. the nature of the dispute;
  2. whether the issue falls within an established area of knowledge (in other words, the issue is one that an expert can give an opinion on); and
  3. whether it is necessary for the court to obtain an opinion from a SEW.

Once appointed, the SEW will be provided with instructions regarding the issues on which their opinion is required. This is often referred to as the “terms of reference”. Whilst the SEW may provide recommendations in their final report, the SEW will not provide an opinion on the outcome of your matter. Due to the operation of the “terms of reference” they will only provide an opinion on a discrete issue.

Finally, SEW’s must be instructed in writing and be fully informed of his or her obligations and duties in accordance with the Family Law Rules 2004. Instructions provided to the SEW must specifically include:

  1. a request for a written report;
  2. advice that the report may be used in anticipated or an actual case;
  3. the issue about which the opinion is sought;
  4. a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
  5. full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.

The parties to a dispute must also provide the SEW with a joint statement of facts on which they will base their report. However, if the parties do not agree on the facts, they will each be required to provide the SEW with their own individual statement of facts.

Alternatively, the Family Court may give the SEW directions about the form and content of the statement of facts.

COSTS OF A SEW

Note the cost of a SEW will generally be shared equally between the parties, but the Family Court may make an Order for one party to pay the costs.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

How to Obtain or Prevent the Issuing of Children’s Passports

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In order to travel outside of Australia, both children and adults, regardless of age, are required to hold a valid Passport. Unfortunately, due to marriage breakdowns and other such factors, the process of applying for a passport for your child can become a difficult exercise. We offer expert legal advice to assist you in either applying for, or legally preventing, the grant of a passport to your child.

What is a ‘child’?

A child is defined in the Australian Passports Act 2005 (‘APA’) as a person under 18 years of age who has never been married. Parental responsibility subsists over ‘children’ and as a result, certain consent requirements must be satisfied prior to the issuing of a child’s passport.  In addition, each passport application must be supported by original documents to prove the child’s identity and citizenship.

Consent requirements to Obtain Children’s Passports:

The general rule is that one of the following is needed to apply for a children’s passport:

  1. The written consent of the person or persons that have parental responsibility of the child;
  2. The written consent of BOTH of the child’s parents; or
  3. An Australian Court Order permitting the child to have an Australian Passport.

Generally, people with parental responsibility are the parents named on the child’s full birth certificate; their parental responsibility can only be removed by an Australian court. If only one parent is named on the child’s birth certificate, but another person has parental responsibility, that person must also provide consent before a passport can be issued. In some cases, other people or entities (such as welfare agencies) have parental responsibility under Australian law.

What if consent cannot be obtained

The only way to guarantee the issue of a passport to a child without full consent is with an Australian court order. These orders would permit the child to have an Australian passport, travel internationally or live or spend time with a person outside Australia.

Applications for passport orders are dealt with as ‘Parenting Orders’ under the Family Law Act 1975. Before these orders are made, the Court in their discretion must satisfy themselves that it is in the best interests of the child for a passport to be issued.

What options outside of Court do I have?

If you are unable to get the ‘not so co-operative’ other parent to sign off on a passport and are seeking to avoid the process of a Family Court application, there may be exceptions to the rule that apply to you.

What exceptions?

You need to be able to demonstrate that there are ‘special circumstances’ which pertain to your case (see APA section 11(2)). These include:

  1. An inability to contact the non-consenting parent for a reasonable period of time;
  2. If there is a family violence order against the non-consenting parenting;
  3. The child is the subject of a welfare order (i.e. child protection);
  4. The child needs to travel urgently for a family crisis.

Unfortunately, there are no guarantees that an application will be approved. This may be due to the Minister rejecting the application for failure to meet the ‘special circumstances’ threshold, or via the Minister refusing to apply their discretion in favour of the matter being heard by a Court. A review of the Minister’s decision may be available in certain circumstances.

 How can you Prevent the issuing of a passport for your child?

Consenting to your child’s passport and travel plans can be inherently risky where there is the conceivable threat of child abduction. Although not every situation will pose this danger, we at CD Lawyers understand that for some this threat may indeed be a terrifying reality.

A primary method of preventing this situation is through withholding consent in the other parent’s application for a children’s passport. However, should the risk that your child will be relocated or travel overseas persist, you should get urgent legal advice and contact one of our lawyers for an initial appointment and action plan. We can assist you in applying for relevant Court orders, including injunctions, recovery orders and location orders.

We understand the stress and time constraints that are often associated with these types of applications. With this in mind, CD Lawyers aims to both advise and make you fully aware of your rights, obligations and risks pursuant to children’s passports applications.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Restraining Orders in Western Australia

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If someone is being violent or threatening towards you, or is acting in an inappropriate manner that makes you feel scared and unsafe, you have the option of taking a restraining order out against them.

What is a restraining order?

A restraining order is a civil order made by the court that gives a criminal consequence to certain behaviours that may not usually be criminal offences. This helps to protect you from not only violent acts, but also from things like harassment, repeated offensive comments, and stalking or cyber-stalking. Breaching a restraining order is a criminal offence, and breaching a restraining order three times means the person will be sent to prison.

There are three types of restraining orders in WA: Family Violence Restraining Orders (FVRO), Violence Restraining Orders (VRO) and Misconduct Restraining Orders (MRO). They all have differences that you should know about before applying.

Family Violence Restraining Orders

FVROs are a relatively new category of restraining orders that was introduced by WA Parliament in 2017. It is aimed at providing more protections for victims of family violence. If the person that is committing violence against you or is making you feel unsafe is a family member, you should apply for an FVRO.

A family member can be your former or current spouse, de facto partner, any relative (including children, parents, grandparents, step-family and all other relatives related by blood, marriage or de facto partnership), and any other person that you have had an intimate relationship with.

For an FVRO to be ordered by the court, there must be some form of family violence. This can include a situation where a family member is acting violent towards you, or is threatening to be violent. It can also include a situation where a family member is trying to control you, coerce you into doing something you don’t want to do, or is acting in a way that makes you feel scared and unsafe. The violence doesn’t have to be physical abuse. It can be emotional, psychological or financial abuse as well.

For example, let’s say you have recently separated from your emotionally abusive partner who had been constantly saying insulting things towards you, and your ex-partner is now constantly harassing you about the separation to the point that you feel unsafe and scared. You should then consider getting an FVRO out against him, because it will then become illegal for your ex-partner to harass you. If your ex-partner keeps harassing you, then he/she will be in breach of the FVRO and will have to face criminal consequences.

Violence Restraining Orders

If the person that is committing violence against you or is making you feel unsafe is not a family member, then you should apply for a VRO.

A VRO is very similar to a FVRO, but can only be ordered where the person being violent or inappropriate towards you is not your family member. For example, it could be someone in your neighbourhood that keeps coming by your house to make threats of assault against you, and you feel very unsafe and scared. Then you should consider getting a VRO out against that neighbour.

Misconduct Restraining Orders

An MRO is aimed at protecting you from inappropriate behaviours like harassment and stalking where there is no threat of violence. For example, if your ex-partner keeps coming to your workplace to see you, and you find this inappropriate, you may consider getting an MRO out against them.

Our firm can assist you with making restraining orders if you are feeling unsafe, so don’t hesitate to contact our office for more information.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Contact Us

Suite 102, 126 Grand Boulevard, Joondalup WA 6027

Phone: (08) 9408 5212

info@cdlawyers.com.au