Tag Archive for: children

Will an Independent Children’s Lawyer be appointed for my children in my parenting proceedings?

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An ICL (Independent Children’s Lawyer) can be appointed in parenting matters in which proceedings have been commenced in the Federal Circuit and Family Court of Australia. An ICL is a court-appointed, legally aided solicitor who independently acts on behalf of a child or children in proceedings. However, they are not appointed in every single parenting matter before the Court.

An ICL does not ‘take instructions’ from children in the same way that solicitors act on behalf their parents. Rather, an ICL acts on the best interests of the child. An ICL is required to consider the views of the child; however, in assessing the matter and all the evidence available, they are to provide the Court with their own perspective about what arrangements they view are in the child’s best interests.

Pursuant to a historical case of Re K [1994] FamCA21, the Court will only appoint an ICL if some or all of the following criteria are met:

  • Alleged child abuse;
  • Unsuitability of either parent to care for the child;
  • Intractable parental conflict;
  • Proposal to remove the child far away;
  • Alienation of the child from a parent;
  • Proposal to separate siblings;
  • Cultural/religious difference;
  • Neither party is legally represented;
  • Special medical procedure is proposed for a child;
  • Anti-social conduct of a parent;
  • Strong wishes are expressed by a mature child.

As such, there are only specific types of matters in which an ICL is appropriate. If an ICL has been appointed by the Court and a Final Hearing has not occurred, there is a requirement for the ICL to meet with the child to give them the opportunity to express their wishes. The ICL is not, however, required to meet with a child under the age of 5 years, or if the child does not wish to meet with the ICL to express their view.

Although an ICL is paid for by legal aid, partners (mother and father) are requested to contribute to the ICL’s costs in the proceedings unless an exemption is granted.

To speak with one of our experienced solicitors at Southern Waters Legal, contact us at (02) 9523 5535 or info@southernwaters.com.au.

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Building Resilience in Our Children After Separation Through Positive Communication

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Navigating life as a separated or single parent brings its own set of challenges, which may leave you feeling exhausted and low in emotional resilience. Juggling and separating your feelings about your ex-partner with a child’s feelings about the other parent is challenging.

The phrases and language we use post-separation can either empower our children or inadvertently reinforce negative beliefs that may diminish our children’s emotional resilience and self-esteem. Let’s delve into five toxic phrases that separated parents should avoid, and how to reframe these conversations to foster a positive environment for your children.

Phrase #1: “Your father/mother is useless with money.”

When tensions run high post-separation, it’s easy to vent frustrations about financial matters. However, casting blame on your ex-partner in front of your children can instill a sense of instability and anxiety. Instead, focus on discussing financial responsibilities calmly and constructively. For instance, you might say, “We have different ways of handling money, but we both work hard to provide for you. Let’s talk about how we can budget for things together.”

Phrase #2: “I can’t do this alone.”

Feeling overwhelmed is natural during times of transition, but voicing this sentiment to your children can inadvertently burden them with your emotional struggles. Instead, emphasise your strength and resilience: “It’s challenging to juggle everything, but I’m learning new ways to manage. We are like Dory – we just keep swimming!”

Phrase #3: “Your father/mother is selfish and only thinks about themselves.”

Encourage empathy and understanding: “Everyone has different needs and perspectives. Let’s try to understand where they’re coming from.”

Phrase #4: “Your father/mother never cared about us.”

Instead, focus on positive aspects of the co-parenting relationship: “Your father/mother loves you very much, and we both want what’s best for you.” “Your dad/mum is great at helping you with football practice/cooking/homework”

Phrase #5: “I don’t know how we’ll make ends meet.”

Financial worries are common post-separation, but expressing hopelessness can instil fear in your children. Instead, focus on proactive steps: “We’re making adjustments to our spending so we can manage our expenses better. It might be tough for a while, but we’re working on it together.” “It’s good to have a goal and save for this, let’s set a goal”.

Phrase #6: “I can’t believe your father/mother did that. They’re so irresponsible.”

Reframe to maintain respect: “We may have different ways of doing things, but your father/mother is learning and growing just like we all are.”

Phrase #7: “Your father/mother always causes problems.”

Foster understanding and empathy: “Sometimes we have disagreements, but we’re working on finding solutions that work for everyone and remember that the most important thing is we both love you very much”.

Phrase 8: “Don’t tell your mother/father anything we did and discussed.”

Children need to feel safe across both homes which includes the flow of information. Just as you don’t want to use them as a messenger, you do not want them to feel they live in two separate worlds that cannot cross over.

Aiming to provide a child-centered approach when communicating with our children on difficult topics, can promote a healthier co-parenting environment and protect children from being caught in the middle of parental conflicts. By choosing our words carefully and fostering open, supportive communication, we can empower our children to navigate the challenges of separation with resilience and optimism. This can assist in helping our children build a future where they feel secure, loved, and capable of overcoming any obstacles that come their way.

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How do I obtain a Passport for my Child after Separation?

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I’m Separated… Do I need to ask for Consent to travel overseas with my Child? And how do I obtain a Passport?

Many parents wish to travel with their child (or children). Travel is one of life’s greatest luxuries, however many parents do not realise the legal restrictions on taking their child overseas once they have separated from the child’s other parent. Two common questions we often receive as family law solicitors are “Do I need permission from my ex to take my child on a holiday overseas?” and “How do I obtain a passport for my child?”.

Do I need permission to travel?

The general rule is that a child should not be removed from Australia without the consent of both parents or a Court Order. If you try to take a child outside of Australia without either of these things, the child’s other parent could apply to the Federal Circuit and Family Court of Australia (“Court”) for a Recovery Order seeking that you return the child to Australia immediately.

Further, pursuant to sections 65Y and 65Z of the Family Law Act, the parent who intends to travel commits a criminal offence that carries a sentence of up to 3 years in prison, if the child is taken overseas unless:

1. There is a Court Order in place permitting you to take the child overseas; or
2. You have the written consent of the other parent.

The above two provisions apply to cases where parenting Orders have been made, or where Court proceedings have been commenced and parenting Orders are pending.

Can I stop my ex from taking my children overseas?

If you have concerns that the child’s other parent may remove your child from Australia and not return, there are a number of measures in place to prevent your child from leaving the country.

Option 1

One option is permitting travel only to countries that are signatory to the Hague Convention, which is an international treaty between over 90 countries (including Australia). Countries that are signatory to the Hague Convention have agreed to uphold parenting Orders from other signatory countries and force the return of children if they are taken or retained overseas without the other parent’s consent.

Option 2

Another option includes obtaining a Child Alert to prevent the issue of an Australian passport. A Child Alert requires the Department of Foreign Affairs and Trade to scrutinise any passport application received in relation to your child. However, it is important to note that this does not guarantee that the application will not be granted, and it does not stop a child from travelling overseas.

Option 3

A third option is to have your child placed on the Federal Police Family Law Watch List (known as the ‘Airport Watch List’). This would alert the Australian Federal Police if someone were to attempt to travel overseas with your child and they would not be allowed to leave Australia, however, there are limitations to this method.

To apply to have your child’s name added to the Airport Watch List, you need to have:

• Court Orders limiting or preventing the child’s overseas travel and which seek that the Australian Federal Police put the child’s name on the list; or
• A pending application before the Court for such Orders; or
• Have a pending Appeal before the Court for such Orders.

If your child’s name is on the Airport Watch List, you may still travel overseas with your child, however, you will need to provide notice of such travel to the Australian Federal Police.

How do I obtain a Passport?

To obtain an Australian passport for a child, the Australian Passport Office generally requires:

1. Each person who makes decisions in relation to long-term issues (previously known as ‘parental responsibility’) for the child to sign the passport application; or
2. A Court Order made by the Federal Circuit and Family Court of Australia providing one parent with the power to obtain a passport for the child without the other parent’s consent.

In the absence of the above-mentioned Order, and if the other parent will not sign the passport application, you may be able to make an application to the Australian Passport Office for a passport to be issued under ‘special circumstances’. For example, if there is a family violence order in place, there has been no contact with the other parent for an extended period time, or if the travel is urgent.

You may also be able to make an application to the Court seeking an Order for the other parent to sign the passport application, or an Order giving you the sole power to sign a passport application.

What happens if I go to Court?

If you make an application to the Court seeking either of the above-mentioned Orders, the Court will consider various factors, including but not limited to:

• The reason for your travel;
• How long you propose to travel for;
• Whether the child will miss out on time with their other parent and if so, how this can be addressed;
• Which country you are travelling to; and
• If the Court is satisfied that you will be returning the child to Australia.

The Court may also request that you pay a sum of money, called a ‘travel bond’ as security that you will return the child to Australia. More often than not, if one party seeks to go on holiday and their ex-partner refuses to sign an application for the passport, communicating to such ex addressing the following, ensures that the application is signed: Confirmation of travel date/time.

What Court Orders should I seek?

It is important to seek legal advice in relation to the most appropriate Orders to seek to ensure that there are no issues in the future should you wish to travel overseas with your child or apply for a passport for your child. At Southern Waters Legal, our team of family law solicitors are experienced in dealing with overseas travel and passport issues and is here to offer you expert legal assistance.

If you are concerned that a parent may be planning to remove your child from Australia without your consent, you should contact us at (02) 9523 5523 as a matter of urgency, to make an immediate appointment with one of our experienced family law solicitors.

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Changing Your Child’s Surname After Separation: What You Need to Know

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We frequently see situations where two parents end their relationship, and the parent who has reverted to their maiden name, or never actually took their partner’s surname to begin with, wants to know whether they can change their children’s surname. For example, common requests are to hyphenate the children’s name to include both parents’ surnames, or sometimes to change their surname completely. The short answer is that a parent cannot change a child’s surname without the other parent’s consent.

If parties are not able to agree in relation to the proposed change of name and there is no previous Order of the Court allocating sole parental responsibility to one parent, the parent hoping to change the children’s surname is required to file a Court application in the Federal Circuit and Family Court of Australia asking the Court to decide. In making this such decision there are several considerations the Court must consider, however ultimately, the Court must weigh up whether it is in the children’s best interests to change their name, some relevant factors in making this decision include:

• The short–term and long-term effects to the child of the change of name;
• The extent of contact with the parent whose surname the children currently have (past and future);
• The extent to which the child identifies with the parent whose surname they have;
• The extent to which the child identifies with the parent whose surname they do not have;
• Any embarrassment likely to be experienced by the child with the proposed name change;
• Any confusion of identity that may arise for the child, if the surname is or is not changed.

Ultimately as with every family law matter, there is no one guaranteed outcome, and the Court assesses each Application for a change of name on a case-by-case basis and with the best interests of the children at the forefront of its decision–making.

If you’re dealing with a family law matter or want to learn more, our dedicated and highly experienced team of family law solicitors is here to assist. Get in touch with us at (02) 9523 5535 or email us at info@southernwaters.com.

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Navigating Divorce: Five Handy Tips to co-parenting post-separation

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It’s possibly one of the most difficult aspects of a separation: co-parenting with your not-so-significant other. As a divorced mother of four-year-old twins, I am no stranger to co-parenting (or attempts at it). Here are some tips collated from my own experience as well as from my family law clients who are navigating the same:

1. Remember: it’s not about you

Often so much has happened between you and your ex-partner at the point of separation, and afterwards, that it is difficult to imagine your children having a positive relationship with that person. Their actions may be unforgivable for you. But unless there are significant issues of risk and a threat to your child’s safety, very often co-parenting is about putting your issues with the other parent aside and remembering: Parenting is not about you; it is about your children. You are both their parents, and they love you both, and want to be loved and cared for by each of you.

Try to compartmentalise what has happened between you and your ex-partner, and any negative feelings you may have towards them. Instead, focus on the primary aim of co-parenting, namely, to enable your children to have a positive and blossoming relationship with both of their parents, whom they love very much. Children are often at the centre of their parent’s wrath and research shows that exposing children to conflict can have negative effects on their mental health and development.

2. Learn the art of compromise

All separated parents experience this: “sorry, I can’t do this weekend because of X,Y,Z, can I change my weekend with the kids to next weekend?” Cue red-faced me, having already planned my child-free weekend, now having to change all my plans and swallowing a response like “no, too bad”.

Remember, compromise can be your friend. In a months’ time when YOU are the one who has that event or appointment and you need to swap days or you want to spend a specific day with the children that happens to be on the other parent’s time, you will need the other parent on your side.

3. Have clear and consistent arrangements in place where possible

This is where we come in. Children thrive on clear and consistent parenting arrangements; they know what’s happening when, and Mum and Dad aren’t fighting at the school gate about who is going to take them home. There’s often a period where that’s not possible; perhaps you’ve just separated and you are trialling what works between you. That’s ok so long as when you find what works, you draft a clear and thorough arrangement that you both understand. This can be in the form of a parenting plan, or parenting Orders sealed by the Court. The key is to be detailed: detail what will happen with changeovers, how will your arrangements re-start after school holidays, have some fall-back arrangements if you are unable to agree. It is always better to be proactive than reactive.

When you both have a written document to work off, you don’t need as much back and forth between you, and it can reduce snarky arguments about who has the children when or what time pick up is.

4. Try to be open and transparent in your communication

This is really important. If you don’t communicate when school events occur, what day is sports day, when a child has a fever or didn’t go to school today because they had a stomach bug, co-parenting quite simply will not work. The best way to communicate is freely and without conflict, but that is not always possible. Many of our clients are assisted by a parenting App such as Our Family Wizard. This has a communication function and a calendar function where you can input your respective times with the children and any other significant dates. Communicating openly and transparently enables a smoother co-parenting arrangement and can reduce conflict.

5. Don’t micromanage: try to Let It Go

This one is HARD. My ex has a habit of giving the children lollies in the morning. It gets me every time. But in the grand scheme of things, a red frog is not going to de-rail their health or development, so unless there are real issues of risk I often need to tell myself to Let. It. Go.  (yes, I just referenced Frozen: four year old kids, remember).

If you allow yourself to get hung up on what the children are eating or doing with the other parent, or the other parent being 15 minutes late bringing the children home, you risk creating a breeding ground of mistrust and an unhealthy power dynamic, neither being good for an amicable co-parenting relationship. You and your ex may have different parenting styles; you also will be now leading different lives. You may well not agree on whether lollies can be given in the a.m. Equally, they may not agree on you allowing the children to eat on the lounge (guilty). But these are not issues of risk. Arguing over them can throw compromise out the window (see Tip 2), but more importantly, this can create conflict that the children will often pick up on.

Finally, go easy on yourself!

Separation is a traumatic experience, made all the more difficult when children are involved. Co-parenting is far from easy no matter how amicable the situation. Go easy on yourself. Seek help when you need it. It is hard, but trust me, it does get better.

If you need legal advice on parenting, property or divorce matters upon separation, please do not hesitate to contact us on 95 235 535. We are more than happy to help, and our extensive experience in family law matters enables us to provide a high quality service designed for your needs.

This article was written by one of our our Family Law Solicitors.

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Choosing A Family Lawyer

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Choosing a Family Lawyer is a crucial decision, here are 5 things to consider:

1. Expertise

Ensure your lawyer specialises in Family Law. They should be familiar with the complexities and nuances of this field. Seeking the assistance of an accredited specialist in the field will ensure that you have someone with specialised knowledge.

2. Communication

The lawyer should be able to explain legal jargon in plain English and keep you updated on your case. The law is complex and a good lawyer will explain it in a way that you are not overwhelmed or lost in the process

3. Comfort

You should feel at ease discussing personal matters with your lawyer. Trust and comfort are key. It is not uncommon for us to meet clients who “just did not feel right” with their initial lawyer or who felt misunderstood. It is important to find the right fit when that person will be advocating for you.

4. Cost

Understanding the fees and ensuring there is transparency around them is really important in making any decision about who your lawyer will be.

5. Reputation

Check their track records and reviews. A good reputation in the legal community is a positive sign. It will also give you some comfort that others have been assisted by this individual.

We have a team of 7 lawyers at Southern Waters Legal who all practice solely in Family Law, 2 of those lawyers are senior accredited specialists in this area. Please do not hesitate to contact us should you require any assistance in relation to your family law matter, including an initial free 15 minute consultation.

Call us on 02 9523 5535 to have a confidential discussion, or email us at info@southernwaters.com.au to organise a call back at a time that is suitable for you.

 

 

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Updating parenting orders to reflect your current situation

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The COVID-19 pandemic and associated restrictions may have prevented us from being able to do many things, however updating your parenting orders to reflect your current situation is not one of them.

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LGA’s of concern and parenting arrangements

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My former partner lives in one of the LGA’s of concern, do I still have to facilitate our parenting arrangement?

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COVID-19 Update on Mediation

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Take a look at Leona’s update on mediation. Even with restrictions, matters are moving forward.
Remember, if you have any questions regarding your circumstances, please get in touch with us on 9523 5535.

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Apps for separated parents

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When parents are separated, communicating with each other can sometimes be difficult.  Emotions are high and arrangements need to be made for the children but parents are still human and still feel the hurt associated with the breakdown of a relationship.  That said, responsible parents need to find ways to co-parent harmoniously and with the children front of mind.  These days, there is technology that can assist separated parents with their communication if face-to-face communication proves to be difficult.

If you are a separated parent and having difficulty communicating about your children, here are some helpful apps you might like to trial:

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