To Vax or Not to Vax

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Navigating your parental obligations in relation to vaccinating your children against COVID-19

The onset of the COVID19 pandemic has presented an unparalleled global challenge to society, the economy and the public health sector.  The pandemic has also created a range of new challenges for separated families, causing an array of family law disputes to surface. The tremendous impact of the Covid-19 pandemic to Australia’s family law system has led the Federal Circuit and Family Court of Australia to establish a special court list for dealing exclusively with COVID19 related family law disputes.

As the COVID19 vaccine becomes available to children, disagreements regarding whether parents should or should not immunise their children against COVID19 are beginning to emerge. Undoubtedly, a parent’s decision to vaccinate their child is complex in circumstances where one parent is wanting to vaccinate but the other parent is opposed. These disagreements often leave parents questioning whether they need the consent of the other party to vaccinate their child, and what they can do in instances where both parents are unable to reach an agreement.

What does the law say?

Whilst the Family Law Act 1975 (Cth) (the Act) does not exactly provide a roadmap setting out what families can and cannot do if they find themselves in this situation, the Act does provide a starting point in respect to parents’ obligations.

Under the Act, there is a presumption that parents have equal shared parental responsibility. This presumption will apply regardless of any changes to the parents’ relationship and until a court Order is made varying this presumption.

Parental responsibility is defined in the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Equal shared parental responsibly is a term that relates to major long-term decisions concerning children, including but not limited to medical, education and religion related decisions.  If the presumption of equal shared parental responsibility applies, then parents are required to consult each other about all major long-term decisions regarding the children and they are to make a genuine effort to reach an agreement.

In terms of the relevance of equal shared parental responsibly and vaccinating children against COVID19, decisions regarding immunisations are captured under parental responsibility as these are considered major long-term decisions relevant to the child’s health.  As such, a parent’s decision to vaccinate their children is one which both parents have an obligation to consult one another about.  Therefore, if the presumption of equal shared parental responsibility applies, one parent should not unilaterally decide to vaccinate their child without the consent of the other parent.

If a Court order for equal shared parental responsibility is in place, then a parent who unilaterally vaccinates their child without the other parent’s consent may well find themselves in breach of a Court Order and open themselves up to the risk of a contravention application being made against them in the Court.

Failure to reach an agreement

If parents are unable to reach an agreement, they can attend mediation in a genuine attempt to negotiate a potential outcome that both parents agree to.  Mediation is a form of alternative dispute resolution and can be an effective way to resolve outstanding parenting issues with the assistance of a trained and experienced mediator.

Going to Court

If parents are unable to reach an agreement through alternative dispute resolution, then a parent can file an Application to the Federal Circuit and Family Court of Australia (Division 2).  There is also a National COVID-19 List which applies to urgent or priority family law applications filed in the Federal Circuit and Family Court of Australia which are filed as a direct result of, or in significant connection to, COVID-19.  This may be relevant for a person who is in a parenting dispute relating to COVID-19 vaccinations in certain circumstances.

If a person files an Application in the COVID-19 list and the Application meets the COVID-19 criteria, then the matter will likely be given a first return date within three business days if the matter is assessed as urgent, or otherwise within seven business days if the matter is a priority, but, not urgent.

The Federal Circuit and Family Court of Australia (Division 1) and Federal Circuit and Family Court of Australia (Division 2) has the power to make orders in relation to vaccinating children (both in the usual Court system applied for parenting matters and part of the COVID-19 List).  In making such determination, the Court will consider what is in the best interests of the child and relevant factors under the Act.

Seek legal advice

If you and your family are experiencing a dispute in relation to vaccinating your children, or arrangements for your children generally, contact us today to make an appointment with Shannon Daykin, Legal Practitioner Director and Accredited Family Law Specialist, to obtain advice about your situation, your obligations and the options available to you.  We can assist you to navigate a road map on the best options to suit your needs and the needs of your family.

Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide.  We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for an initial consultation.

Making Parenting Arrangements After Separation

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There is a lot to consider when travelling down the separation path, with a number of moving pieces.  For many, the main focus is on what arrangements will be put in place for the children.   We address some of the things to consider when making parenting arrangements.

From the outset, we have regard to the Family Law Act 1975 (Cth) (the Act) and the legislative pathway that applies to parenting matters.  The paramount consideration for the Court when making any decision about a child is the child’s best interests.  We keep this at the forefront of the advice we give, and encourage you to keep it as your primary focus as you navigate making parenting arrangements.

We explain below some terms and concepts you may come across, or might like to consider.

Parental Responsibility

Under the Act, there is a presumption that parents have equal shared parental responsibility.  This is essentially the default position, unless an order to the contrary is made, and is defined in the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

This does not relate to the amount of time that a child spends with each parent.  It only relates to major long-term decisions, such as medical, education, religion as some examples.  Parents do not need to consult with one another about any non-major long-term issues, such as what the child will eat or wear.

The presumption that a child’s parents have equal shared parental responsibility will apply unless the child has been subjected to family violence, abuse, or if the Court considers that it is not appropriate based on the relevant circumstances.

Care Arrangements

Care arrangements of the child will often be discussed as one of two arrangements, the “live with” and the “spends time with” arrangements.  The Court must consider equal time if it is reasonably practicable.  If not, then consideration will need to be made as to who the child “lives with” and who the child spends “substantial and significant time with”.

The “live with” arrangement refers to the parent who the child lives with on a regular basis.  Whilst the “substantial and significant time with” arrangement refers to the parent who the child spends certain time with.

The Act refers to “substantial and significant time” can encompass a mixture of days during the week, weekends, holidays and being involved in the child’s daily routine and events that are of particular significance to the child and to the parent.

Examples of care arrangements could include:

  1. Either parent having a week about care arrangement, where the child will stay with one parent for a week and alternate the next week with the other parent; or
  2. The child living primarily with one parent and spending time with the other parent on specified times, such as Wednesday nights in week 1 and from Friday to Sunday in week 1 as an example.

If substantial and significant time is not in a children’s best interests, then regard should be had as to what arrangements will best meet the child’s needs.

Communication

A parenting arrangement may incorporate communications that a child is to have with the parents, especially when the child may not have the opportunity to live with the parent or to spend an immense amount of time with them.

Such communications can encompass telephone, email, video calls, text messages or any other means of communication.  It can be an effective way to maintain the child’s relationship with their parents when they are not spending time with them.

Regard may need to be had to a child’s routines and extra-curricular activities to ensure that communications are positive.  Every family is different as to what suits them so devising a proposal based on what is best for the child when they live or spend time with you can be the best way to start discussions.

Changeover

When arranging a time for the child to spend time with a parent, there is always an option to have a changeover location that is neutral to both parents and the child or the parents’ homes if it is safe.  When there is tension between the parents, parents may wish to have school or day care as the changeover location to limit interactions.  This can minimise potential conflict arising.

Often the elected changeover venue is a public place.  It could be a local park, café or landmark.

Thought may also need to be put into appropriate changeover arrangements if children travel between homes with bulky bags or school items.  A storage place may be needed for example if changeover occurs at school, to ensure that the child’s possessions are kept safe.

Supervised Time

If a child’s physical or psychological safety is at risk, consideration may need to be given to taking steps to protect the child from this risk.  This could involved supervised time, where the child’s time with their parent takes place in the presence of a trusted and appropriate adult who remains close enough to supervise interactions and act if needed.   This can assist in keeping the child safe, whilst developing and maintaining a meaningful relationship with their parent.

Supervisors can be someone agreed between the parents, such as a grandparent or mutual friend.  Or, parents can opt for a contact centre to provide supervised time at a cost.  The length of time and frequency of supervision can vary, but is often impacted by the availability of the chosen supervisor or contact centre.  Both private and public organisations offer supervised time at what is known as a children’s contact centre.

Child Support

You may wish to reach agreement with the other parent on how expenses will be paid for the child.  Some options to consider are an informal agreement, a child support assessment, a Limited Child Support Agreement or a Binding Child Support Agreement.  Legal advice will be helpful to ascertain which option is right for your circumstances.

As a common tool, the Department of Human Services (Child Support Agency) has an online estimator calculator on their website that can provide an estimate as to how much a parent may need to pay in periodic child support (for children under 18 years).  The estimator gathers information like the annual taxable gross income that you and your ex-partner receives, the details of your child, and the frequency of the care arrangement that a parent may have.  The estimator will provide an estimated minimum amount that a parent is to pay the other, as an annually, monthly, fortnightly, and weekly amount.

There may be other costs that you need to consider, such as private health insurance, medical costs, orthodontic costs, extra-curricular fees and expenses, school fees for example.  We have extensive experience in negotiating child support arrangements for our client, and assisting in making them legally binding and enforceable.  This can be done separately, or as part of negotiating property settlement.

Special Occasions & Holidays

Special occasions and holidays are a favourite time of the year for many and some thought often needs to go into how these days will be shared between the parents.  Some leniency towards making certain exceptions to special occasions and holidays are often necessary.  An example of this is if a child was living with the mother on the day that Father’s Day falls on, then such arrangements could be made to allow for the child to spend time with the father on Father’s Day from 9am until 5pm, or such time as agreed between the parents that is in the best interest of the child and that is reasonably practicable.

Such other special occasions encompass the child’s birthday, parent’s birthdays, other holiday days such as Easter, Christmas, New Years, and religious days.  Holiday time can be split a range of ways, such as specific days, parts of weeks, week-about, half and half as some examples.

Review and Dispute Resolution

Whether you are entering into a parenting plan or consent orders for a parenting arrangement, it is useful to consider how issues that remain in dispute are to be resolved and if any reviews may need to be done (such as when young children grow older).  You can make provision for certain processes, such as attending mediation or family dispute resolution.

Mediation or family dispute resolution can be an effective way to resolve outstanding parenting issues with the assistance of a trained and experienced mediator with family dispute resolution qualifications.  These practitioners can be lawyers, psychologists, social workers or have some other background in addition to their mediation qualifications.

Recording Your Agreement

You can keep your agreed parenting arrangement informal, such as by verbal agreement or an exchange of emails.  It may become difficult to keep track of those agreements though, so many parents record arrangements in a Parenting Pan.  There are a range of resources on the internet regarding Parenting Plans.  Whilst Parenting Plans are not binding or enforceable, they are a piece of evidence for the Court in any future proceedings.  Care should always be taken when drafting these documents, and legal advice may be necessary.

For some parents, a binding and enforceable parenting arrangement is preferable.  When there is agreement, parents can enter into a joint application for Consent Orders in the Court.  The Judicial Registrar will consider the application and make the orders sought by the parents if the Court considers the orders are in the child’s best interests.

What Now?

Reaching out to a family lawyer does not have to signal a battle is starting.  Quite the contrary.  We help many, many clients as they begin their separation journey so we can help guide them towards an agreement and away from the Courts.  We can assist you up front in negotiations, or support you behind the scenes so you can advocate for yourself.  Court should always be a last resort as it can be expensive, time consuming and emotionally draining.

We offer a reduced fixed fee initial consultation when advising clients for the first time.  We can discuss what arrangements might be best for your family, and address any other matters that you may need assistance with as well, such as spousal maintenance or property settlement.

Shannon Daykin is a Queensland Law Society Accredited Family Law Specialist, a Nationally Accredited Mediator and Accredited Family Dispute Resolution Practitioner.  She has a wealth of knowledge and experience in parenting law, and is named as one of the Leading Parenting & Children’s Matters Lawyers in Brisbane in the prestigious Doyle’s Guide 2022, as well as other Doyle’s Guides Lists in 2022 and for a number of years.  Contact us today to book your consultation in person, by phone or video call.

Navigating through the Court process

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Many separated couples can become stuck when negotiating arrangements for how to divide property, or what longer term arrangements will be in place for the children.  It is always best to attempt to negotiate directly with your former spouse about potential options to resolve the dispute if your circumstances permit and it is safe to do so, rather than going straight to court.  This is especially so when there are children involved and parents must continue to co-parent with each other.  However, in some cases, the intervention of the courts becomes necessary to progress matters towards finality and to assist the parties in moving on with their lives.  

The court process can seem intimidating to people who are not familiar with it, as there are a myriad of rules and regulations, as well as procedures, that must be followed by litigants and anyone else involved, including lawyers. 

Read on to get a basic understanding of, how does the court process work in family law matters? This will cover how proceedings are initiated and we will address some of the more commonly encountered steps involved in litigation. 

The Courts

Most states and territories, including Queensland, have a Family Court and a Federal Circuit Court, both of which may hear family law matters, but knowing which court is right for your case can be difficult. 

The Family Court is a superior court and has jurisdiction to hear and determine family law matters as well as appeals.  The matters heard in the Family Court tend to be more complex matters, whereas the less complex matters are generally heard in the Federal Circuit Court.  In any event, applications filed in the Federal Circuit Court may be transferred to the Family Court, and vice versa, if the court determines that it is necessary to do so.  Changes are coming to the Court system later in 2021, but this is the state of the system for now, in a nutshell.

How to commence family law proceeding

An applicant may file an application in either the Family Court or the Federal Circuit Court to start their case.  Regardless of which court you file in, the court will apply the relevant provisions of the Family Law Act and any other relevant legislation, however it is important to note that the court rules and procedures may vary.

Generally, proceedings in family law matters are initiated at the filing of an initiating application,  however depending on the nature of your case, this may not be the appropriate application for you.  Initiating applications set out the orders sought of the court on an interim and/or final basis.  The nature of the orders sought will of course depend on whether the application relates to property settlement and/or parenting matters, and the requirements tend to vary depending on the case.  

There may also be other documents that need to be filed with the initiating application, such as an affidavit, a financial statement in property matters and a notice of child abuse, family violence or risk in parenting matters. 

Keep in mind that before an application for parenting matters is filed in the Court, parties are required to attempt family dispute resolution or seek an exemption from this requirement in certain circumstances.

Responding to an Application

If you happen to find yourself to be on the receiving end of an initiating application, you will be identified as the “respondent” in the case and you will often be required to file a Response to Initiating Application.  Similar to the requirements for an initiating application, your Response may need to be accompanied by an affidavit, as well as the orders you wish to seek from the court, such as interim and/or final orders.  The financial statement and notice of child abuse, family violence or risk may also need to be filed, depending on the circumstances.

First return date

The next step in family law proceedings is often a first mention hearing.  This hearing enables parties to attend Court (usually electronically at the moment) and deal with interim matters sought in the application and/or response.  At this hearing, the court may consider the material filed by both sides.  The court may also make certain orders to assist parties in trying to resolve various issues in dispute in these early stages.  For example, in property settlement matters, the court may order that parties exchange disclosure documents (if such documents haven’t been exchanged already) or attend a mediation or conciliation conference to try and negotiate a settlement outside of court. 

In parenting matters, the court may make an order for a family report to be prepared.  If this occurs, a family report writer will interview the parties, and sometimes the children, and provide a detailed report with recommendations based on their findings.  The court may then consider these recommendations when making any interim and/or final parenting orders.  

Final Hearing

The final hearing, also known as a trial, is a hearing before a judicial officer who will conduct the trial and make a decision about the outcome of your case.  During the trial process, the parties and other witnesses and/or experts (if applicable) may be called to give oral evidence and be cross-examined by the other side.  The Judge will generally also consider the other evidence filed in the court such as affidavits, family reports and subpoenaed material, to make a final determination and issue final orders. 

The trial might run for no more than 1 day in some cases, but in other cases the trial might run for 2 or 3 days or, sometimes, much longer.  The time required for the trial will largely depend on the specific circumstances of each case and the issues in dispute.  

Court etiquette

It is important to remember that Courts are formal places and there is an expectation that anyone present before the court must behave in a respectful way and follow the necessary rules and procedures of the court.  Failure to comply with court rules or inappropriate behaviour in court may result in a fine or even jail time.  

Dress appropriately when you attend court and be sure to switch off your mobile phone and other electronic devices prior to entering the court room.  You should wait in the public gallery seating area until your matter is called, and it is best to avoid speaking until you are spoken to by the judge.

See the following Family Court of Australia webpage for further tips on attending your court hearing: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/about-going-to-court-and-court-processes/tips-for-your-court-hearing/

Seek legal advice

Overall, navigating through the court process can seem daunting and intimidating for those who are not familiar with the system.  Often, the requirements for commencing proceedings and the steps involved may differ depending on the circumstances of each individual case, the needs of the parties and/or children and the orders sought.  This is why it is best to seek legal advice about your case and tailored advice regarding the best options that suit your individual needs and the needs of your family when it comes to litigation or your family law matter generally. 

Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.  Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide, and named on the List in previous years.  We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.

In plain English: The basics of going to Court

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If you’ve worked with us before, you’ll probably know that we’re advocates for Collaborative Law, and advise where possible that our clients stay out of Court when settling a family law dispute.  However, sometimes going to Court can be unavoidable when in the midst of a property dispute or an issue concerning children.  If you’ve tried alternatives to Court and still find yourself facing the inevitable, refer to our handy guide on what to expect when you’re going to Court.

 

What you need to know about going to Court

 

Matters under the Family Law Act are normally handled by the Federal Circuit Court.  More complex cases are determined by the Family Court of Australia.  In Brisbane, the Federal Circuit Court and Family Law Courts are based in Harry Gibbs Commonwealth Law Courts Building in Brisbane CBD.  

 

Going to Court can be a long and time consuming process (often between 1 to 2 years or more to progress from initiating proceedings to Judgment if settlement does not occur in the meantime).

 

For matters involving property and parenting, there are a couple of common steps that are taken:

 

  1. First Court Date

Following an application being filed with the Court, the Court will allocate what is known as a First ‘Mention’ date.  The purpose of the First Mention is to provide an initial assessment of what needs to happen for the matter to be finalised.  Often, procedural orders are made to progress the matter.  This can include disclosure, valuations and mediation for a property settlement matter, or the preparation of a Family Report for a parenting matter.

 

For more information, refer to the FFC guide here: FCC Fact Sheet: The first court event – helpful information

 

  1. Conciliation and Mediation

A Conciliation Conference is a compulsory mediation session with your lawyer, along with your former partner and their lawyer.  This occurs within the Court with a Registrar convening the Conference.  Mediation occurs outside of the Court, with a mediator engaged by the parties. 

 

The purpose of Conciliation Conferences and Mediation is to try and agree a suitable arrangement for all parties.  If you are able to come to an appropriate resolution agreed by both parties, then proposed Orders can be prepared, signed and submitted to the Court for the Judge’s consideration.  If the Court makes the Orders, then no trial will occur.

 

For matters involving parenting disputes, Compulsory Family Dispute Resolution must take place first (except in specified exempt circumstances – contact us for more information).  The aim of Family Dispute Resolution is similar to a Conciliation Conference – all parties can attempt to come to a resolution surrounding issues of parenting, instead of a Court deciding the matter for you.  If you are unable to come to a resolution, you will receive a Certificate from the accredited dispute resolution provider verifying your attempt to resolve the matter out of Court.

 

  1. Family Report (Only in parenting matters) 

The Court will often make an Order that a Family Consultant is to prepare an independent, non-confidential report, as evidence for the Court to consider in reaching a determination.  The Consultant will meet with each party, the child(ren) and any significant others in the child’s life.

 

Parties can seek a Family Consultant’s Report through the Court, or engage a private Family Report Writer/expert to prepare a Family Report.

 

Preparing for a Trial

 

Preparing for Trial is costly and involves significant work, so it is important to consider alternatives to Court and to make every effort to settle the matter before it reaches the Trial stage.  

 

The kind of work required for a trial can include:

 

    • Filing affidavits detailing your evidence and of any witnesses you intend to rely on.  Other documents are usually required to be filed, such as a Case Outline
    • Property valuations need to be obtained for a property matter
    • You might need to issue subpoenas for external documents or other information
    • You may need to instruct a barrister to represent you, instructed by your Solicitor
    • Exchange disclosure – documents relevant to your case

 

Trial

 

A trial date can be set up to 18 to 24 months or more after an application has been filed, depending on the Court’s diary and how your matter progresses.  

 

On the trial date(s), you and your lawyer will attend Court and a Judge will hear your matter. The Applicant will be heard first, along with their witnesses, led by their lawyer.  The Respondent will then do the same.  After this, the lawyers will submit to the Judge arguments about how the matter should be decided, referring to evidence and case law. The Judge will then make Orders or adjourn the case to give their judgment another time.  This can sometimes take up to a further 6 months to 1 year for a Judge to deliver their Judgment.  

 

Undeniably, therefore, there are many benefits to settling out of Court.  We pride ourselves on only a very small percentage of our matters making it to a final hearing in the Court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.  We have published articles giving guidance on a range of issues, and you can find some articles below:

 

https://daykinfamilylaw.com.au/what-is-collaborative-law/

https://daykinfamilylaw.com.au/what-happens-to-property-before-after-divorce/

https://daykinfamilylaw.com.au/settling-out-of-court/

https://daykinfamilylaw.com.au/property-settlement/

https://daykinfamilylaw.com.au/child-custody-mediation/

 

If going to Court is the only option, then we can guide you through every step of the litigation process.  Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

 

We provide expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

 

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.