Can I join in? Applications for parenting orders by a third-party

It is not uncommon to receive an enquiry from someone whom is not a biological parent to a child (e.g. grandparents, step-parents and other relatives) about their options to spend time with the children of others, such as their grandchildren.

The Family Law Act provides that “any person concerned about the children’s care, welfare and development” can seek Orders in relation to children.

Whilst this seems like it could include a broad range of people, before allowing such parties to seek such Orders, the Family Court places the onus on an Applicant to provide evidence which justifies their need to spend time with the children and evidence that their Application would be in the children’s best interests .

The Full Court of the Family Court in the matter of Mankiewicz and Anor & Swallow and Anor said

Whether or not permission should be given [to a third party to joint proceedings] is a question of fact… to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case.

Case law in the area suggests that the Court will consider evidence such as the role the Applicant had in the lives of the children in the past, the nature of their relationship and their influence on the wellbeing of the child. As always, the Court’s paramount consideration is the best interests of the children.

The Full Court in Mankiewicz and Anor & Swallow and Anor considered an appeal made by maternal great grandparents who had made numerous Applications over the years to obtain parenting orders to allow them to spend time with their great grandchildren. In 2009, at first instance, their Application was unsuccessful with the Court finding that their relationship with their great grandchildren was not of such a nature to warrant their involvement in the proceedings. They did not meet the threshold required to be involved in the parenting arrangements for the children. They were unsuccessful in subsequent appeals, with the Full Court not being persuaded that such an Application was in the children’s best interests.

If you would like further advice about your options to seek parenting orders, including matters where you are not a biological parent to such children, you should contact our experienced family law team.

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.

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.