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What if my child refuses to see the other parent?

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One of the most common issues parents face is defiant children. For separated parents, this issue may arise when handover is looming. So, what can you do when the kids are kicking, screaming and telling you that there’s absolutely no way they’re going to spend time with their other parent?

This issue was addressed in the matter of Cartland v Cartland [2014] (“Cartland”), by Judge Terry of the Federal Circuit Court. The father in this matter filed a contravention application against the mother because their two children, who were 11 and 12 years old, were not spending time with him in accordance with the parenting orders. The father gave evidence that the mother would bring the children to handover and sit silently in the car while the children told the father through the rolled down window that they would not spend time with him.  The mother would then drive the car home, taking the children with her.

When dealing with contravention applications of this nature, the Court is of the view that failing to handover the children pursuant to the orders is not considered a contravention if there is a ‘reasonable excuse’ for not doing so. When deciding whether you have a reasonable excuse, you should seek legal advice.

In Cartland, the mother argued that she complied with her obligations by attending handover and making the children available to the father, but she had a reasonable excuse for the visit not going ahead: the children did not want to go.

The Court disagreed; the mother had not discharged her obligations pursuant to the orders. Judge Terry was critical of the mother’s behaviour, finding that her passive behaviour taught the children that it was reasonable to refuse to spend time with the father. In order to comply with the handover order, the mother had an obligation to positively encourage to spend time with the father; “parents must make a reasonable effort and take positive steps to bring about a change in the attitude and wishes of the children”.

Importantly, each case is different. Many factors will be taken into account when determining what is reasonable in the circumstances, such as the children’s age, maturity and ability to make decisions for themselves; history of proceedings; and family violence. However, the following general guidance may prove helpful when navigating this issue:

  1. You must physically take your child to handover, pursuant to the relevant orders.
  1. If the children express to you or the other parent that they do not want to spend time with the other parent, you must take positive steps to change their attitude. For example, you could:
    1. before the visit, tell your child they will have a good time with the other parent; and
    2. after the visit, talk to your child about what they did with the other parent and raise positive talking points. For example, “you went to the beach with Dad? That’s great! Did you build a sandcastle?”.

After taking positive steps, you will hopefully notice an improvement in your child’s attitude. However, if this isn’t the case, you will at least have a stronger argument for a reasonable excuse.

Coping with Christmas – 10 tips for separated Mums and Dads

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For families with separated parents, coping with Christmas can be a time of disappointment and disagreement. Rather than opening presents first thing in the morning and happily gorging yourself with far too many mince pies, separated parents might find themselves a little sad during what should be a joyful time. Caught in the middle of this are children who just want to enjoy the festive period.

With substantial experience in family law, our lawyers have ten top tips to help separated parents make the most of coping with Christmas:

  1. Plan ahead. If you’re not sure whether the kids will be at your house or your ex’s on Christmas morning, now is the time to make arrangements.

 

  1. Remember that Christmas is a time for your children. Practical steps to prioritising the children’s best interests include asking them what they want to do over Christmas, listening closely to what they say and putting their wishes ahead of your own. The kids want to watch The Grinch on Christmas Eve instead of It’s a Wonderful Life? Maybe suck this one up, Dad.

 

  1. That being said, parents should always call the shots. If children’s wishes can’t be met (for example if, despite their pleas, you can’t make it to the North Pole to visit Santa and his elves this year because of border closures), explain to the children why they can’t do exactly what they want to do over Christmas. Young children are not decision-makers – that’s your role.

 

  1. Build the children’s excitement by telling them everything they can expect on Christmas day. Who is coming over? What are you eating for lunch? Most importantly, when can they open their presents? This serves the dual purpose of encouraging some festive excitement and keeping them involved in the plan for the special day, causing them to feel involved.

 

  1. Allow your children to take items of comfort between homes. This is particularly helpful if the children are young, as they are more likely to have a favourite and familiar item which will help them settle into the other parent’s home. If one of the children accidentally leaves an item of comfort with you after handover, organise for it to be returned as soon as possible.

 

  1. Be flexible. While each parent should try to abide by the agreed care arrangement, sometimes things happen. If the children are half an hour late to handover because your ex’s Christmas family lunch went a little over the planned time, suggest the children spend an extra half an hour with you to make up for this. Be practical, not argumentative.

 

  1. Avoid conflict. Although emotions are heightened over the festive period, especially if Christmas isn’t living up to what you had hoped. It’s important to avoid conflict when the children are present. The quickest way to ruin Christmas for your children is to argue in front of them.

 

  1. Handover should not be stressful. If seeing your ex is usually a tense affair, enlist the assistance of a third party to facilitate handover for you. For example, a family member or friend. Avoiding your ex entirely is sometimes the key to keeping negative emotions at bay.

 

  1. Seek legal assistance if you need to. You could do everything in your power to plan the perfect Christmas around your difficult ex, and they still might not cooperate. In such a scenario, remember that our office does not shut down for Christmas until 24 December 2020, so there’s still plenty of time to reach out for assistance.

 

  1. Finally, always remember there are many social services open over Christmas if you need help. The contact information for various services who specialise in providing assistance to different people in different circumstances can be found via the following link: https://www.whiteribbon.org.au/Find-Help/Help-Lines.

 

If you would like to discuss your personal circumstances with one of our experienced family lawyers for coping with Christmas, please contact our office today on (08) 9408 5212.

Parenting arrangements and Christmas: don’t leave it too late!

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“It’s the most wonderful time of the year!” … except when it’s fraught with arguments because your ex won’t agree to a Christmas parenting arrangement. Arguing about where the children will spend Christmas isn’t very festive. In light of the whirlwind of 2020, we all deserve a much more relaxing and joyful end to the year. For this reason, you should seek to make Christmas care arrangements well in advance so you can enjoy the lead up to the festive period without any unnecessary stress.

What can I do?

The Family Court’s deadline for applications to be heard before Christmas was 13 November 2020. If you haven’t already filed an application seeking orders for Christmas care arrangements, the Family Court will be unable to assist you this year. It’s time to ramp up your negotiation efforts.

If you’re on amicable terms with the other parent, you might be able to agree to a care arrangement on the basis of a few informal conversations. However, it’s not always that easy. Engaging the assistance of a lawyer to negotiate on your behalf is often an investment worth making.

If you still can’t agree, it’s not too late to attend mediation or an informal conference. Often the involvement of an experienced third party can help warring parents resolve parenting disputes, even if the short-term ones.

What should I propose?

Some options you might consider are as follows:

  • A common compromise on Christmas day is for children to spend their time with one parent in the morning and with the other parent from midday onwards. This allows for the children to spend equal time with each parent on the special day.
  • Often, parents agree to alternate the arrangement each year. That is, if the children spent Christmas morning with mum this year, they’ll spend Christmas morning with dad next year.
  • If the children can’t spend time physically with one parent (say, they’re currently abroad), spending half an hour on video-call might make their day.
  • Sometimes, one parent might have family traditions that the children participated in each year prior to separation. If the children look forward to this each year, it is likely in their best interests to ensure this annual tradition is not broken, even if it means one parent might have a little less time with them over Christmas.

Of course, what works for one family might not work for the next. You should obtain legal advice about the suitability of specific care arrangements in your circumstances. Our lawyers are well-versed in family law disputes, including those specific to the festive period.

What if I don’t get what I want?

Christmas is a time for family. There is nothing more festive than being woken up at 5am by your children bouncing on your bed and asking whether Santa has been, or falling asleep on the sofa watching Christmas movies with the kids. Parents disagreeing about care arrangements has the potential to ruin the “ideal” Christmas. When this issue rears its ugly head, there is only one thing to remember: the children’s best interests are the priority.

It isn’t about what the adults want. If you wanted to wake up with the children in the morning but your ex is insisting otherwise, be flexible and compromise. The earlier an agreement is reached, the longer you have to plan your time with the children to make sure it’s their best Christmas yet.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

I think it’s time you leave! – Your rights to ‘Exclusive Occupation’ of the Family Home

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Separating from a spouse or a significant other can be stressful at the best of times. Typically, issues arise where both parties refuse to give up their right to reside in the family home. This begs the question, who has the right to remain in the family home?

Ordinarily, one or both of the parties will agree to move out of the family home in a bid to move on and sever their ties to the relationship. However, in some circumstances both parties will refuse to leave the family home, which often results in a hostile living situation.

In these circumstances, an aggrieved party may apply to the Family Court of Western Australia for an exclusive occupation order. The Court may grant this order where they consider it ‘proper’ in the particular circumstances of that case. The power to make a “sole use and occupancy” order is by way of injunction. For married or de facto couples, these orders are made by reference to sections 114(1) and 114(2a) of the Family Law Act 1975 (Cth), respectively.

Where the matter involves children, the Court may grant one of the aforementioned injunctions to restrain a party from entering or remaining in the child’s place of residence if they deem this action necessary to protect and advance the welfare of the child. Essentially, the Court’s paramount duty will be to protect children from psychological stresses caused by friction between parents, and this is primarily encapsulated by the Court’s obligation to make orders that prioritise the best interests of the children.

 

Matters involving children:

 In the case VCM v KRM [2005] FMCAfam 108, a mother who resided with her husband and 3 children sought exclusive occupation of the family home. In making its decision to grant the exclusive occupation of the family home to the mother and the children, the Court had to determine whether this order would be in the children’s best interests.

The Court turned its mind to several circumstances, including but not limited to the fact that:

  • The parents often fought verbally;
  • The parents fought physically; and
  • The children were in the care of the mother.

In making this order, the Court essentially restrained the Father from occupying the family home as the circumstances of the case were such that the Court deemed it in the children’s interests that they reside solely with their mother at the family home.

 

Factors considered in making an Order for Exclusive Occupation:

 The Court will take into account a number of considerations when deciding whether a particular party should gain the right to solely occupy the family home.

The overarching consideration of the Court is as to the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett [1975] 1 ALL ER 513, 520)

The relevant factors outlined in recent case authority is as follows:

  1. Needs of children
  • If children are involved, then the needs of the children are a matter that is always at the forefront of the Court’s mind when making a decision. We note that it is common for the party who cares for the children to be provided exclusive occupation of the family home (In the Marriage of Gillie).

 

  1. Likely Hardship to the children or either party
  • The Court will also take into consideration the hardship that will be suffered by both parties from an emotional and financial perspective if exclusive occupation is not granted to them. If there are children involved, then their needs will be given paramount consideration.

 

  1. Practical effect on Family life
  • The practical effect of an order is a primary consideration of the Court. This factor is assessed with reference to the realities of family life should one party gain rights to exclusive occupation over the other (Basset v Basset).

 

  1. Means of the Parties
  • The Court will also consider the means and needs of the parties. This involves the Court turning its mind to the costs involved in moving homes and finding alternative accommodation. The Court will also consider whether or not the home subject to the order is used as an integral part of either of the parties’ business operations (Mafrica v Mafrica).

 

  1. Conduct of the Parties
  • Finally, the Court will take the conduct of the parties into consideration when deciding whether or not one party should be granted exclusive occupation over another. This relates to whether physical or verbal abuse has been directed to one party by the other.
  • This becomes a particularly relevant factor where the abuse is such that one party fears for their safety or the children’s. In these circumstances, the aggrieved party will often be successful in an application for the exclusive occupation of the property (In the Marriage of Davies).

 

The Court in Saveree & Elenton noted that the factors considered are non-exhaustive and each case must ultimately be determined on its facts. The Family Court will only make an order for exclusive occupation where it considers this action to be ‘just and fair’ in all of the circumstances.

 

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

“But I’m not the dad!” – Presumptions of Parentage in the Family Law Act

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A DNA test is typically the most reliable method of determining whether or not a man is the father of a child. However, under the Family Law Act 1975 there are a number of presumptions of parentage:

  • Marriage if a child is born to a woman who is married (s69P(1)) or is born within 44 weeks of a marriage ending by death or annulment (s69P(2)), the child is presumed to be a child of the woman and her husband. Also, is a child is born within 44 weeks after the end of cohabitation, but after the divorce of a man and woman, the child is presumed to theirs (s69P(3)).
  • Cohabitation If a child is born to a woman who has cohabited with a man during a period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the child is presumed to be the child of the man.
  • Named on the Birth Certificate If a person’s name is entered as a parent on the child’s birth certificate under a law of the Commonwealth, or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be the parent of the child.
  • A Court’s finding If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child.
  • Declaration If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child and the document has not been repealed or set aside, he will be presumed to be the father.

Where a presumption arises and is satisfied, this is often enough for the court to make a determination as to a parent’s requirement to pay child support.

 

Rebutting the presumption

These presumptions are rebuttable by proof on a balance of probabilities. This means the standard of proof is ‘more likely than not’, in comparison to the standard of proof ‘beyond a reasonable doubt’ in criminal cases.

The obvious mechanism for rebutting the presumption is a DNA test. The court is able to make orders for a paternity test on its own initiative or by one of the parties making an application. Failure to undertake a DNA test while claiming that you are the father of the child may allow the court to conclude that you are not the father.

 

An Interesting Case: Artificial Semination

In the recent case Masson v Parsons & Ors [2019] HCA 21, the High Court rule that a man who donated his sperm for the birth of a child through artificial semination is a parent of the child under the meaning of parent in the Family Law Act 1975.

The man took action when the mother of the child attempted to relocate to New Zealand with the child and her partner. The High Court overturned the Full Court of the Family Court’s finding that the man was not a parent of the child. It was said at [26]-[29] of the majority judgement that: “A court will not construe a term in a way which departs from its natural and ordinary meaning unless it is plain that parliament intended it to have a different meaning.”

Therefore, because the man is the biological father of the child and provided his genetic material for the purpose of fathering a child, he was held to be a parent for the purposes of the Family Law Act.

If you have concerns about whether or not you are the father of a child, Carter Dickens Lawyers can assist you. Contact us today on (08) 9408 5212 to speaker with a lawyer who can assist you.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Child Abduction and Family Law

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It can be a terrifying moment for parents when they discover that their partner or ex has taken the children somewhere and cannot be contacted or located. If you believe that your partner or ex has taken your children and intends to flee with them, you should immediately contact the police emergency services on Triple Zero (000), and then contact a family lawyer experienced in recovery matters.

Often, whilst overwhelmed in this moment, parents can feel like they are powerless and there is not a lot they can do. This is not always the case and recourse is available to locate, and if necessary, recover children who have been taken.

 

If They Are Still in Australia

If you know your ex has taken the children but is still located in Australia, there are a few options available to you to assist in finding out where your children are and, if appropriate, having your children returned to you.

You do not need court orders to be able to have a child located and recovered. If you have a parenting plan in place (even an informal one) or so long as you are involved in the child’s life and have a hand in the child’s care, welfare and development then you will be able to make an application. This also applies to grandparents.

 

LOCATION ORDERS

A Location order is an order requiring a party to provide information to the Court regarding the children’s whereabouts.

A government agency (for example the police) can also provide information to the Court about the location of the children.

If a location or Commonwealth information order is granted, you will not be provided the information and, if you are legally represented, then your lawyer will only be able to receive that information if there is a court order allowing them to do so.

 

COMMONWEALTH INFORMATION ORDERS

A Commonwealth information order is an order to government entities requiring that they provide information (if they have any) to the Court regarding a child’s location.

 

RECOVERY ORDERS

Keeping in mind with all of the above orders, if the court believes it appropriate that the court’s paramount consideration is the best interest of the children, then it will make a Recovery Order.

A Recovery Order allows appropriate agencies (such as the police) to do what is required to find and recover a child and return them to the applicant, if they are a parent or have responsibility of the child. You do not need to have Court Orders in place for a recovery order to be granted.

If a recovery order is granted you will not be able to be present during the recovery and would be informed afterwards if it was successful and how to arrange handover of the children.

 

If They Have Left Australia

It is a criminal offence punishable with 3 years immediate imprisonment to remove a child from Australia or (if already removed) stopping a child from returning to Australia.

There are very limited grounds to remove, or keep a child removed, from Australia.

If this has occurred, the police have specialist units whose duty is to recover children who have been abducted. Australia and a large number of other countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, which allows for the recovery and return of children under the age of 16 taken to one of these countries.

If your ex has taken your children internationally, you will need to obtain a Recovery Order to direct the appropriate authorities to locate and return your child to you.

If you do not know the location of the child or the other party, then you may need to consider obtaining location orders and/or Commonwealth information orders.

 

What if I’m Worried They May Take the Kids and Leave Australia?

If you have genuine concerns that the other party is going to take the children and take them out of Australia, you are able to seek Family Court Orders preventing them from being able to do so.

If appropriate, the Court has a number of options available to stop a party from removing children from Australia. These options include:

  1. an order that the children’s passports be held at the Court.
  2. the children be put on the Australian Federal Police (AFP) Airport Watchlist. If Children are included on the Airport Watchlist, it means that if someone tries to remove them from Australia they will be flagged on the system and the AFP will be alerted to potential movement of the child.

The Court will ordinarily provide Watchlist Orders to the AFP on the same day that the Orders are made. Airport Watchlist orders can be granted on an urgent basis, even if the Court is not open at the time you find out that the other party is going to be taking them.

If you do have concerns that the other party is going to take your children, you should contact police emergency services on Triple Zero (000) immediately and then contact a lawyer during the day, or if after-hours first thing the next day.

Carter Dickens Lawyers is able to arrange urgent client meetings with same-day appointments as needed. We have experience in making urgent court applications and the have acted in such matters in the past.

Contact our Office on (08) 9408 5212 for a no obligation initial consultation and one of our experienced lawyers will be able to discuss the above matters with you as well as broader family law matters.

 

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.

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