Family Reports explained

In a contested matter regarding children, if the children are at a developmental stage that they can engage in meaningful conversation about the relevant issues, a court will require that there is a family report prepared to be considered by the court before making a final decision.

The report is prepared by a psychologist (sometimes social workers) who reads the court documents, meets with the parties and the children, speaks to other relevant people (schools, doctors etc.) and writes a report with their recommendation of what are the arrangements that will be in the best interests of the children.

Family reports often lead to parties settling because:

• it is powerful to hear recommendations from an expert
• issues are clarified
• people don't want to continue the proceedings
• reports helps people recognise what is in their children's best interests

If a matter doesn't resolve the report writer will attend court and be cross-examined during the hearing of a matter — which is often more of a conversation in the court with the judge testing thoughts about the best orders.

The court employs a small amount of these staff directly and contracts others but the vast majority are private reports where the parties pay the cost associated with the report, which can be significant.

A family report is a useful step in family law proceedings but it is important to understand that process and be well prepared for the report appointments.

Location orders for children

In the unfortunate situation where a parent removes a child and the other parent is unable to locate the child, a party can make an Application for a Location Order.

A Location Order requires a third party, such as the Australian Federal Police or Centrelink, to provide to the Court any information about the location of the child and/or the parent who has taken the child.

As well as the Application, the Applicant must also file a supporting Affidavit setting out:

1. Their personal history and the personal history of the other party;
2. The history of the relationship between the parties;
3. Details of the history of previous court proceedings between the parties (or lack thereof);
4. The relationship between the child and the Applicant;
5. The possible location of the child and the basis of that belief;
6. Any steps that they have taken to locate the child prior to filing the Application;
7. The anticipated effect if the Court did not make the Order; and
8. Why they believe the other party (e.g. Centrelink or the Australian Federal Police) will have the required information (e.g. the other party is believed to be receiving Centrelink payments.)

As with all parenting matters, the Applicant needs to convince the Court that the making of the Order is in the child’s best interests.

If the Application is successful, the third party (e.g. Centrelink or the Australian Federal Police) will provide the necessary information to the Registrar of the Court.

Location Orders can be a useful or necessary step in such situations, which thankfully are extremely rare.

Supporting the needs of children with mandatory mediation in family law matters

As Sam McGee, one of the Family Law Specialists at OFRM, wrote recently, mediation is a useful way to resolve family law matters.

Legislators and the Court have also recognised mediation’s value and have made it mandatory for parties to enter into mediation before commencing court proceedings for children’s matters. The way in which this is made mandatory is by the Family Law Court rules requiring in most circumstances that parties cannot commence court proceedings seeking orders regarding children without filing what is known as a “section 60I certificate”. A 60I certificate is a certificate that confirms the parties have attempted to resolve the matter through mediation known as family dispute resolution before commencing court proceedings.

There are many benefits in using family dispute respolution to sort out children’s matters.

Firstly, it can be a more rapid means of resolving parenting disputes in comparison to litigation, which can take months if not years to finalise. Resolving children’s disputes quickly is particularly important where young children are involved because even relatively short periods of uncertainty or instability can have a significant impact on them.

Family Dispute Resolution also provides the parties in dispute with a forum in which they can be heard and understand the other party’s perspective. Parties, are given the opportunity to speak about issues and experiences important to them in the situation. This might be the first time they are able to speak about the issues surrounding the dispute since separation. Alternatively this may also be the first time they have heard the other party speaking about such issues. These opportunities do not usually present themselves in legal proceedings and can help the parties come to an agreement quicker as they begin to understand the other parties side and find middle ground.

Family Dispute Resolution also assists parties to maintain or develop a cooperative approach to parenting and continuing such arrangements. This is particularly important in children’s matters as parties will need to be able to communicate effectively when circumstances change as children grow older.

Every family has their own unique circumstance and quirks. One of the original proposed advantages of family dispute resolution is that the process can potentially yield better arrangements for parents in dispute in comparison to decisions made by the courts. These tailor made agreements are far more flexible and specific to the needs of the parties than the outcomes available through the court process.

However, if you are in a situation where you think you may need to attend Family Dispute Resolution mediation it is vital that you obtain advice from our family law team before attending. Our family lawyers will be able to advise you on how to approach the mediation and what would be the likely outcome if you have to go to court. Call the Family Law team on 03 5445 1000.

Who pays for the extras?

At this time of year it feels like wallets are permanently open getting kids ready for another season of sport.

My quick calculation is that getting our 11 year old on the soccer pitch has included:

• Registration fees $190
• New boots $120
• New shorts and socks $67
• New mouth guard for those ever changing teeth $120

Add in the petrol for trips to Castlemaine and Moama during the season, orange duty, snacks, coffee on the sidelines — weekly sport quickly gets expensive.

So how does the law treat these extracurricular expenses for separated families.

Since the establishment of the child support system in the late 1980's the payment of money for the maintenance or support of children and their expenses falls within that system.

Child support has a formula that calculates the payment from one parent to the other based on income and the amount of time the child spends with each parent. The formula was originally based on studies about the costs of raising children incorporating the usual expenses. The safety net if the result of the formula doesn't lead to a just situation is a system of review through the Department of Human Services (formerly the child support agency), the Administrative Review Tribunal and ultimately court. Of course there is also the ability to reach an agreement between yourselves (a child support agreement).

So how does this system work for expenses related to sports, music or other extra-curricular activities?

First it is necessary to consider whether the expenses fall within the usual amount which would be covered in the usual cost of children covered in child support. Is it a usual day-to-day expense something that would be expected for most children. Then it should just fall within child support.

If the costs are extraordinary — equipment or travel or so on, then on the absence of an agreement you would need to be able to establish that those costs fulfill the grounds for varying child support under s117 of the Child Support Act. That section covers the grounds on which a departure from a child support assessment can be obtained and there are a number of provisions that could cover high sporting or extra curriculum costs.

The process involved is to seek a child support review and if unsatisfied with that to appeal to the Administrative Appeals Tribunal. If that doesn't get the desired result in limited circumstances there may be the opportunity for review to the court.

As you can imagine, the grand final would be played before all of this could happen.

What's the message in this then? In my family law experience the best way of resolving who pays what for extra curricular activities is to make a joint decision together. If you are unable to do this between yourselves some timely advice from us and maybe mediation is much more likely to get the right result. The alternative is complex.

I've separated. How do I make parenting arrangements?

In many instances, when parents separate, they are able to reach an amicable agreement about their parenting arrangements. When parents agree verbally on the arrangement for their children, such informal agreements are not always recorded in writing and the parties have generally not had the benefit of obtaining legal advice about the appropriateness of the arrangement. Such agreements are not legally binding or enforceable (although they can be used as evidence of the "status quo", that is they can be used as evidence as to what has been the arrangement which can be considered when determining what the future arrangements will be). Sometimes informal arrangements need tweaking over time and conflict can arise at that point too. Even if you are able to reach an informal agreement, it is greatly beneficial to receive advice so that an enforceable and long-lasting agreement can be drafted.

An agreement can be turned into a Parenting Plan. This is a written agreement which stipulates that parenting arrangements. They usually include parental responsibility, with whom a child lives, with whom and when they spend time with and arrangements for special occasions. A Parenting Plan can be drafted out of Court. Unlike Court Orders, a party cannot be found to be in "breach" of a Parenting Plan. Although they aren’t strictly enforceable, if the matter did proceed to Court, the evidence before the Court would include, the arrangements provided for in the Parenting Plan.

When parties reach an agreement the agreement can be made into Court Orders, known as Consent Orders. A lawyer would turn an agreement reached between parties (with or without lawyers’ assistance) into the correct format and the written agreement is then submitted to the Court for approval. No Court hearing is required, instead the Orders are considered "in Chambers". If deemed to be in the children’s best interests by the Court, the Orders are made and become legally enforceable.

If parties are unable to reach an agreement for parenting arrangements between themselves, with the assistance of lawyers or through mediation, then an Application can be filed in the Federal Circuit Court or Family Law Court of Australia seeking parenting orders. The Application would detail the orders sought and once filed, it is served on the other party, whom then file responding documents. Before an Application can be filed, parties generally have to have attended to attempted to attend mediation or Family Dispute Resolution Conference. There are circumstances where this requirement is negated, such as in matters involving family violence and urgent matters. Once the Application is filed with the Court, the Court will set a date for the first hearing. There is a lot of scope during Court proceedings for matters to be negotiated without the need for the Judge to make the final decision.

At OFRM we have Bendigo and Central Victoria’s largest Family Law team, headed up by our 2 Accredited Family Law Specialists, Marika McMahon and Sam McGee. All our family lawyers are able to assist you with your parenting arrangements when you call 03 5445 1000.

Family Law and children's education

With term 2 now well and truly underway, now is a good time to debunk some of the myths surrounding Family Law and children's education.

First up, choice of school. Most separated parents are able to reach agreement on which school their children will attend. Sometimes that is by just continuing at the school already enrolled, or carrying out previously agreed plans.

Often the ability to pay school fees becomes a determining factor, especially when life becomes more expensive post separation.

However, sometimes agreement cannot be reached and then we need to think about how the law will be applied. Thinking about what a judge would do is often helpful in assisting parents to reach agreement.

There is no legal presumption that favours the parent who the children are living with being the one who decides which school — rather the Family Law Act provides the decision between competing proposals must be made on the basis that the best interests of the children is the paramount consideration.

Offering to pay the fees or a bigger share of the fees does not add weight to a parent’s proposal, although the court will be interested to know that the financial commitments for the proposed school can be met fairly by the parents on an equitable basis given their income and financial resources.

The types of things the court looks at in determining which school includes things like the prior intention of the parents, religion and cultural traditions, the amount of travel involved and the ability of the school to meet any special needs or interests of the children.

The court requires that proper regard must be had to the wishes of the children but there is no presumption that a decision must accord with the children's wishes. The approach the court has taken in past cases is quite circumspect about children's wishes, especially as children can put higher emphasis on things like friendship groups that is less of a factor for them in hindsight.

These days, parents often turn to published Naplan results as an argument for or against a particular school. Such results are only one factor the court would consider and is usually outweighed by information regarding he school that is more specific for the individual child such as for a child talented in maths, that they have a maths extension program or for a child struggling with literacy, they have a reading recovery program.

So what should you do on a practical level?

It's important to not leave such discussions too late as time pressures if you don't sort it out early might mean you are forced into compromises you wouldn't have made if time was on your side. As a rule of thumb you would want to have an agreement on school reached well before school orientation days and interviews start which can be as early as term 1 for grade 6 to year 7 and usually term 3 for Prep. Therefore starting the discussion before kinder and grade 5 start is not excessive.

You should thoroughly research schools to form your own opinion as well as researching the schools your ex prefers. Get the information packs, attend open days and information nights, talk to parents of current students. Think about what your child needs from a school. Think about how it would work practically — drop off and collection, before and after school programs, attending out of school hours functions.

These days there are even businesses which will help parents assess schools for your children.

Your children will benefit if you can reach agreement so put lots of effort into that. Attend mediation to see if you can resolve the issue — but before heading to mediation make sure you chat to us for legal advice because this is a situation where you need very specific advice.

Court proceedings may be necessary and if so OFRM's family lawyers can assist you getting the matter determined by a court on the basis of the right evidence from you in a swift and cost effective manner. Call us on 5445 1000 to discuss further.

Surviving Easter and school holidays when you are not spending time with your children

Easter – advertisers and Instagram would have us believe it is a time full of family. A time full of camping, egg hunts, hot cross bun parties and in Bendigo, the Easter Festival.

With that 4 day block of public holidays – to say nothing of school holidays as well - it can be a really challenging time if your post-separation parenting arrangements do not provide for you to spend time with your children.

When the children are not with you and you’re struggling, keep yourself occupied – perhaps do things that you would not otherwise be able to do when the children are with you – go to a great restaurant, catch a movie, get your to-do list done, keep your house tidy(!) or catch up with friends. Don’t get too hung up on having to have the children with you on the dates our culture marks as the family ones. Figure out other ways to make it special as of course, you should try to make the most of the time you do have with your children whenever that is.

Remember, you can also celebrate the special occasion on a different date when you are spending time with your children. There would not be any children who would be upset to have to celebrate Easter for another day. Create new traditions!

Being prepared can avoid such difficulties. If you think your arrangements could be better, make a time to see one of our experienced [Family Law team] (https://ofrm.com.au/family-law) for further advice by calling 03 5445 1000. Your current arrangement may need tweaking or there may be avenues available to obtain a more appropriate arrangement.

Parenting arrangements at Christmas

It's a wonderful time of year... so the saying goes but in the world of family law Christmas can often be one of the hardest times. Whether a relationship is on its last legs, or the split is new or it is one of many Christmas seasons you have spent apart arrangements can often still be difficult.

Christmas time means you don't have to deal with your own emotions and those of the kids but also the thoughts of extended family and friends. Everyone seems to have their own agenda and thoughts on what should happen.

So what is the legal situation regarding arrangements for the children over Christmas?

In the absence of court orders, the arrangements are what you can agree to. Many people will be left to this as the courts have a cut off date for applications regarding Christmas — they need to have been filed by mid-November.

Mediation can be a good way to try and reach an agreement, allowing people to work through the issues, often coming up with an alternating arrangement over a few years.

I always suggest to clients trying to avoid travel on Christmas Day. While everyone would dearly love to spend any time with their kids on Christmas Day, just think about how crazy the roads can be, how emotions are charged, how a changeover in the middle of the day would add to the drama. Maybe taking year about is much more sensible way to go.

Hopefully you have Christmas sorted for this year. If it feels like things aren't quite right with Christmas this year maybe it you can make it a new year resolution to try and work on better arrangements for 2015.

Wills — When equal is not equal!

Frequently I am preparing Wills for people who have a number of children spread over a relatively wide period of time. Usually the desire to leave the assets equally between the children seems straight forward and appropriate. But is it?

Assuming that there are two children; Jason 18 years and Kylie 12 years. Jason has just finished Year 12 and Kylie has just finished Grade 6. Further assuming that there is a pool of assets totalling $500,000, an equal split would result in funds of $250,000 to each child. But this is not an equal result for Jason and Kylie as Jason will have had the advantage of a further six years of education and maintenance during that period of time as compared to his younger sister. Consequently a division of the assets in the Will in equal shares is not an equal result for Kylie.

A simple, but effective approach, is to create a separate Education and Maintenance Fund for Kylie. If Kylie went to a Government run Secondary School, then her educational costs would be at the lower end, but could easily amount to $2,000 to $5,000 per annum. General living costs might be in the range of $10,000 to $15,000 per annum, but could be more. Therefore if an allowance of $20,000 per annum was made in an Education and Maintenance Fund, you would end up with this result:

• Education and Maintenance Fund for Kylie - $120,000
• Half share of residue for Jason - $190,000
• Half share of residue for Kylie - $190,000

If Kylie was attending a Private School then the fees would be much higher and the provision in the Education and Maintenance Fund can be amended accordingly.

There would usually be a provision that the Education and Maintenance Fund would be managed by the Executors until Kylie has completed her Secondary or Tertiary education. The other funds would probably also be held on Trust until Jason and Kylie have either attained 18, 21 or 25 years, depending upon your preference.

It is impossible to obtain perfection with this method, but it does produce a much fairer result for Kylie than a straightforward equal division of the Estate.

What age do the kids get to make up their mind where they live?

Technically speaking the Family Law Act gives courts the jurisdiction to make family law orders regarding arrangements for children from the time of the birth of the child until they turn 18. The age can be even less if the child is married or in a defacto relationship (which throws up a few other legal issues).

Therefore a court can make an order regarding where the child lives up until the child is 18. An order stops being in force once a child turns 18 or marries or enters into a defacto relationship.

On a practical level, this means that you could apply to the court for an order regarding the living arrangements of a 17 year old.

It is important to then take into account how the court deals with such an application. In Family Law courts, the children never get to dictate what is to happen. However, the court is obliged to take into consideration the views of the child.

The court can do this by:

• Having regard to the matters contained in a family report prepared for the court
• Ordering that the children be represented by an Independent Children’s Lawyer — who is obliged to put the children’s views before the court although they can present to the court that they disagree that those views are not in the best interests of the child
• Or by such other means as the court considers appropriate

Usually, the more mature a child is — and I deliberately say mature rather than old — the more their wishes will be compelling to the court. They usually also become more compelling to the parties. However, the court does not just accept the view of the child at face value — the court will look at the circumstances around those wishes. This is what I sometimes refer to as the “PlayStation” factor – looking at why a child may have arrived at a view and is that in their best interests, is it just because someone has promised them a PlayStation.

Sometimes a practical element then comes into play — there is little point in litigating and getting orders if the child is going to make the implementation of those orders really difficult. That is why often there will be interim orders made to either test how something occurs or to gradually introduce the arrangements. It is also possible for the court to order that a counsellor oversees these arrangements.

What does this all mean? In my over 20 years of experience, I would say that the age is not the critical factor — rather you are better to put your effort into making sure your children are well supported so that arrangements are easily implemented.