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Relocating With a Child After Divorce: Your Questions Answered

There are several reasons why you may be thinking about relocating, temporarily or permanently. You may wish to move to another town, move interstate or travel to another country.  There is a common law presumption unless a Court makes another order that both parents of a child who is not 18 have parental responsibility for their child, and therefore there are legal implications that must be considered when relocating with a child, whether you are separated or divorced.  

Today’s blog talks through some of the common questions asked when considering relocating with a child within Australia.  The list is not exhaustive by any means, so we encourage you to speak to us to discuss the matter in detail and find out what’s right for your individual circumstances.

 

What is child relocation?

Child relocation can be described as the changing of a child’s living arrangements to another town, city, state or country. If parents have an order for equal shared parental responsibility, and a change to the child’s living arrangements makes it significantly more difficult for the child to spend time with a parent, then the non-relocating parent’s consent to the relocation or court order permitting the move is needed.

The relevant legislation is s65DAA of the Family Law Act, which explains in detail the process that the court must follow when considering if a child should be spending equal or substantial time with each parent.

 

How do I get permission to move?

If there is a need to relocate, first and foremost it is encouraged that you talk to the other parent and try to come to an amicable agreement.  You may be able to compromise on the other parent spending longer periods of time during school holidays or longer visits through the year, or your former partner may agree to move to where you are hoping to relocate to.  

Attending dispute resolution can often help in reaching an agreement about the relocation.  If you are able to resolve the issue, it is often best to enter into a written parenting plan or apply to the Family Court for a consent order to formalise the agreement.

 

How do I make plans for contact between my child and the other parent?

It is important to set out the parameters of contact or “time and communications” with the other parent on the type of contact (for example video calls, telephone calls and physical contact), how frequent communications or visits/time will be, how costs of travel will be split, if and how the child can travel, accompanied or otherwise.  Once you have agreed on the frequency and type of communications, this can be recorded in writing, preferably in the form of a parenting consent order.

 

What if I can’t reach an agreement with the other parent?  

If you have tried and failed to reach an agreement, you must demonstrate that you have attempted family dispute resolution (with the exception of family violence and other limited exceptions) before you can apply to the Federal Circuit Court for an order that permits relocation.

Obtaining a relocation order can be difficult, expensive and three may be delays.  The court will always consider the best interests of the child before any other factors, as this is the paramount consideration for the court.

 

How do I apply to the court for a relocation order?

If you are applying for relocation, you will need to include in your application a demonstration of an attempt at Family Dispute Resolution, as well as detailed information of your plans for relocation.  For example, you may need to include information on;

  • where you are going
  • your reasons for the relocation
  • the housing situation
  • plans for school and before/after school care
  • the support system in the new location
  • history of your relationship with your former partner
  • the relationship between the child and each parent
  • your proposals for the child’s time and communication with each parent after any relocation

 

What if the child is relocated without a court order?

If a parent moves without consent of the other parent or a court order, the other parent may be able to apply to the court for an order that the child or children be returned until an outcome has been determined by the court in certain circumstances.  If a court order is already in place, the other parent may be able to file a contravention application to seek that a party who breaches a court order be punished.

If the other parent takes your child without discussing it with you,  you can apply for a Recovery Order with the court, which enable police officers to take action to find, recover and return a child to you, as well as prohibiting that person from removing or taking possession of the child.

 

Final Thoughts…

As with any major decision to be made as separated parents, consideration should always be given to where family dispute resolution is appropriate.  This is a means to try and resolve parenting issues without litigation if possible, with the help of a trained and independent professional.

Daykin Family Law have extensive experience in mediating outcomes for clients which can avoid the court process and provide you with certainty.  Talk to us today about how we can assist you.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping with family law matters and dispute resolution. If you are struggling to agree on a relocation arrangement, contact Daykin Family Law today to let us devise a clear plan for you.

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.

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.

 

Child custody mediation

What is child custody mediation and how do I prepare?

Questions around the process of mediation are often asked by our clients.  We all know that going through a divorce is tough – for you, your ex-partner, for the children and wider family.  When emotions are high and the future is uncertain, there can be a significant amount of conflict that arises in the decision making process, leading one or both partners to find themselves unable to compromise or reach a decision in the best interests of the children.

 

In Australia, as discussed in our recent child custody blog, the Family Law Act 1975 (Cth) suggests first and foremost that couples do not use the Courts where possible and instead engage in mediation prior to escalating to the Court.  Even where a parenting orders application is made through the Court, the applicant will most likely be obliged to demonstrate that they have attempted to resolve their differences prior to having the Court intervene.

Custody is no longer a term used by the Family Law Courts, opting instead for terms associated with what time a child spends with each parent and what communications they will have.  If it is safe, both parents are encouraged to play an active role in their children’s lives for the benefit of their wellbeing.  However, it can be difficult to come to an agreed decision on issues such as health, living arrangements, finances and education.

When parents can’t agree, that’s where a mediator comes in.  Your family lawyer can organise for an experienced Family Dispute Resolution Practitioner to facilitate discussions between both parties in an impartial, calm manner.  The goal of mediation is to come to an agreement approved on both sides that can by turned into either a Parenting Plan or approved by the Courts in a formal Consent Order if required.

Mediators are not there to make judgements or take sides.  They are engaged to essentially chair a meeting between both parties, to facilitate proactive discussion in a safe, controlled environment that allows a resolution to be reached which is in their children’s best interests.

 

How do I go about getting a mediator?

 

There are a number of options for mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new Parenting Plan.  Legal representatives are not permitted in that process however.

Private mediation services also exist, usually at a higher cost. Your family law can attend and represent you throughout the mediation. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.

Going to Court is not usually a preferable course of action and is usually an expensive one.  Mediation gives you the opportunity to come to an acceptable resolution swiftly and in a cost-effective way.

 

When isn’t mediation appropriate?

 

Sometimes, mediation isn’t an appropriate course of action, particularly in circumstances involving family violence. In such cases, the support of a lawyer can assist in effectively dealing with challenging cases to ensure your interests are protected.  If there are allegations of abuse, your lawyer can advise whether the case should proceed in Court instead of with a mediator.

 

Should I seek legal advice before going into child custody mediation?

 

The most effective mediation happens when both parties have sought legal advice about their individual circumstance beforehand.  You are much more likely to be prepared, to understand the probable outcomes, your options and how a Court might deal with your matter.  By figuring this out in advance, and understanding your legal position, both parties are more likely to be more informed and will have considered in advance of negotiations what they are or aren’t willing to compromise on.

Your lawyer can come to mediation sessions and advise you as the session progresses.  Sometimes mediation can become heated or tense when sensitive and important issues are addressed and having your lawyer with you ensures you have your say and your interests and those of your children are prioritised throughout.

 

How to approach mediation

 

Preparation is key to effective mediation.  With the support of your lawyer, you can approach mediation with more of an open mind, ready to listen and to develop a mutually satisfactory agreement.  Remember to keep your children and their best interests in mind and be aware of the impact of conflict on them.  Importantly, it’s best to approach mediation as a place to solve parenting problems rather than bring up any other marital issues.

Mediation isn’t always smooth sailing, but by remembering that you are there to find a solution for your children and listening to the advice of your lawyer and guidance of the mediator, you are much more likely to reach a settlement that works for both of you.

 

What can be resolved in mediation?

 

The most common topics that are discussed and resolved in child custody mediation are things like living arrangements or relocation, child support, health issues, education and religion, how time will be split between parents and how school holidays will be spent, overseas travel and the division of payments for things like after-school activities.

 

What is the process of mediation?

 

When a mediator is appointed, each parent is normally invited to a pre-mediation meeting separately to establish whether the case is suitable for child custody mediation.  If you have appointed a lawyer, they will advise you whether this is the case and what available options there are.

Both parties can then be asked to prepare a short statement to bring to the initial session, outlining what you hope to achieve from mediation.

Each mediation session can run for a shorter period, such as around three hours, or even a full day.  In some cases, it can take a number of sessions to resolve some of the more significant issues.  This is obviously expedited if both parties come prepared and willing to compromise.

If no agreement can be reached in mediation, then a certificate will be issued by the mediator.  Either parent can then file for parenting proceedings in the Court.  Such a certificate will also be issued if a genuine effort isn’t made by one parent to resolve the dispute, if a parent fails to attend or for another relevant reason.

 

I am considering child custody mediation, what should my next steps be?

 

Where possible, it would be prudent to speak to a family lawyer that can help you to understand your options prior to appointing a mediator.  Daykin Family Law is expertly skilled in children’s and parenting matters including child custody mediation, and work closely with psychologists, social workers and mediators to help you and your family stay out of Court wherever possible.  We can recommend a suitable mediator for your matter and assist in inviting the other parent to mediation.

At Daykin Family Law, we place a high importance on assisting clients to reduce conflict and maintain respect in the co-parenting relationship after separation as much as possible.  Shannon Daykin is an experienced Family and Divorce Lawyer.  An Accredited Family Law Specialist, Shannon was recently 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 give you 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.

 

 

How to get custody of a child

If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.

Most of the time, parents who have separated agree on the future parenting of their children.  For some, the children might live with one parent, and see the other at weekends, holidays and special days.  For others, the children may effectively have two homes and spend an equal amount of time with each parent.  For many, the arrangements are somewhere between.

Sadly, not all agreements can be made amicably, or there may be extenuating circumstances that mean parents choose to litigate in the family court system.  Litigating child matters in the courts can be particularly emotionally straining for all parties involved and is often considered to be a last resort.  That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation.  In this article, we seek to provide some clarity around the process of seeking child custody.

What is child custody?

The term ‘custody’ is actually no longer used by the family law courts, however it is still used regularly by others and in the media.  In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and financial maintenance.  The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.

What is the legal process for getting child custody?

There are no standard arrangements for the care of a child following separation, however the starting point is Section 65E of the Family Law Act.  This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.

The law assumes firstly that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse.  However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child.  This decision is made by the Courts in the best interests of the child.

What are the ‘best interests of the child?’

The courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests.  The primary considerations are;

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect children from any harm, such as family violence, neglect or physical and psychological harm

The latter is always deemed the priority of the two primary considerations.  There are a host of other additional considerations that may include;

  • the views or wishes of the child – if these are expressed
  • the relationship of child with their parents and significant others, for example grandparents and siblings
  • parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations
  • the effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
  • cultural issues – for example religion
  • any family violence issues
  • another other issues the court deems are important to the case

Should I go to court for child custody?

It is most often the case that parenting arrangements can be made without the intervention of the Courts.  Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation.  By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.

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.

If you are seeking court intervention, ask yourself the following;

  • Do I want sole parental responsibility?
  • Why do I want sole parental responsibility?  Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
  • Why do I want the children to live with me?  Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
  • Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?

If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders.  You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances.

What is the process for getting a court order?

You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse).  It is imperative to get advice from your solicitor prior to taking any action.

If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee.  In some cases, an application may need to be filed with the Family Court of Australia.  It is really important to seek advice from a family law expert if you are considering going down this path.  We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family.  If Court is the only option, then we can guide you through the litigation process.

What if I already have a parenting arrangement in place and circumstances change?

Firstly, it depends how the parenting arrangement is recorded.  If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.

The above gives you just a snapshot of some of the complex factors involved when considering child custody.  It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.

We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible.  If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody.  Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

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) 3338 5645 to make an appointment for a fixed fee initial consultation today.