Which kid is worse? (circa 1935)

Working out what is in the best interests of the kids

Much of family law in Australia is based on doing what is in the best interests of the children.

So what exactly does “the best interests of a child” mean? You might think it means one thing, while your former spouse might think it means something entirely different. As a lawyer, I see this this quite a bit!

To set your minds at ease and to guide you, the Family Law Act tells you exactly what this vague expression means.

Best interests of the child are primarily:

• The benefit to a child of having a meaningful relationship with both parents.

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

But additionally they are also:

• Any views expressed by the child. (Particularly as the child gets older eg. teens)

• The nature of the child’s relationship with parents and others, including grandparents.

• The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child.

• The extent to which each parent has fulfilled his or her obligations to maintain the child.

• The effect on the child of any changes in the child’s circumstances.

• The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on a child of maintaining personal relationships and direct contact regularly with both parents.

• The capacity of each parent and others to provide for the child’s needs. (Poor mental health could be an issue here)

• The maturity, sex, lifestyle and background of the child and parents. (Immaturity, drug use etc. come in to play here)

• The child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant.

              I kinda want you both in my life dad and mum

• Each parent’s attitude to the child and to parenting.

• Any family violence involving the child or a member of the child’s family. (This is very important)

• Any family violence order. (Very important again)

• The desirability of making the order that is least likely to lead to further proceedings.
(Here the court tries to play fair with orders so it won’t see the two of you again. But that sometimes is a big misjudgement!)

• Any other fact or circumstance the court thinks relevant.

It’s a lot to take in. The most important or primary things to consider are ensuring your child has a meaningful relationship with both of you and is protected from any violent or potentially violent and/or abusive situation. You can probably guess that the law considers violence and abuse prevention is the most important thing to get right when it comes to your kids.

Separating parents usually understand most of these considerations and work out between themselves how their children will be looked after and where they will live without the courts becoming involved and imposing conditions. I can assure you if you can do this by putting aside your feelings about each other and not treating the kids as pawns you will be well on your way to a hassle free divorce.

Coming to an agreement

Now there are 3 different ways both of you can come to an agreement:

1  A Simple Informal Agreement

♦ Keep the agreement informal by simply coming to an understanding between the two of you as to what will work best for the kids. If you can do this there’s no need to put things in writing.

2  A Parenting Plan

♦ Make a formal parenting plan. This is an agreement in writing made, signed and dated by both parents. The plan deals with parental responsibility; who the child lives with; who they spend time and communicate with; what child support might be involved and other issues. Take a look at the parenting plan info to find out more.

The great thing about a parenting plan is that you don’t need to go to court to get this organised. But it’s important to remember that a parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion.

As parents you should normally only sign a parenting plan after seeking advice from a lawyer. I say this because a lawyer or experienced legal drafter (lawyer-drafters are much cheaper) has probably done a parenting plan many times prior to seeing you and they can often pinpoint things that may not occur to you to include in your plan.
For example, you might want special days like your birthday to always be a day when you can see your kids. This is good to have in the plan as it may not be your turn to have the kids when certain special days occur.

And always keep in mind those “best interests of the child” considerations when developing your plan.

3  Obtaining Consent Orders

♦ A more official way to sort out your parenting plans if you are both in agreement is to obtain consent orders approved by a court. A consent order is a written agreement that you both agree to that covers parenting arrangements for children. It can also include financial arrangements such as property division and any maintenance requirements that might be needed. Not following consent orders can have serious consequences and you may need to explain to a Judge why you breached the orders that you agreed to.

This is because consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. It is a document you would both prepare in consultation with your lawyers who will then come up with a single agreement you are both in favour of and send it to the court for approval. Normally you shouldn’t need to appear in court for these orders.

And once again, the court must be satisfied that the orders you ask for are in the best interest of the child.

Here’s a fact sheet on applying for consent (and other) orders from the court.

When you can’t seem to work things out

Sometimes despite giving it your best shot, it may be difficult to reach an agreement (or a fair one) about what will happen with the kids. You might also not want to negotiate with your ex if there could be the possibility of endless arguments or even worse, violence.

If you’re in this predicament you can apply for a parenting order.

But not so fast because there is a process you must go through before the court considers issuing orders about how the kids are to be parented.

The Family Law Act (aka ‘the law’), requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting order. It’s called a 60I certificate.
Family dispute resolution can be done through any accredited family dispute resolution practitioner or Family Relationship Centre.

How family dispute resolution works

Firstly, before any family dispute resolution (FDR) takes place, you are assessed to see if the service is right for your case. Usually, the two of you are interviewed separately to see if FDR is going to work.

The process is conducted by an accredited family dispute resolution practitioner who can help you both discuss any issues you have and how from that you might be able to work out an agreement with a parenting plan.

Finally, it is comforting to know that any FDR discussions you have are confidential and can’t be used in court against you.

So in summary

♦ If you try FDR and it doesn’t work out, or

♦ If your ex did not attend FDR due to the refusal or failure, or

♦ If one of you doesn’t attend FDR because the practitioner did not consider it would be appropriate to conduct FDR…

You still get your 60I certificate, which must accompany your application for a parenting order.
This is what the certificate looks like

There are several important exceptions where you won’t need a 60I certificate including:

♦ If the matter is urgent.

♦ If the Court is satisfied that there are reasonable grounds to believe that there has been child abuse and/or family violence by a party.

♦ There is a risk of family violence by one of you, and/or there is a risk of child abuse if there was a delay in applying to the Court.

♦ Where one of you can’t participate effectively in family dispute resolution for reasons of incapacity, illness or simply living too far away from a dispute resolution practitioner.

♦ If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly breached the order has betrayed in a way that shows a serious disregard for their obligations under that order.

What does the court consider when issuing parental orders?

A wealthy couple celebrates their new marriage circa 1914

What exactly is a Pre-Nup?

Australian couples can plan for their future rights (and responsibilities) with a binding financial agreement. Once something is binding it is difficult, although not impossible, to change or overturn it.

Check out HERE what Aussie law says about these agreements and when they are binding.

A financial agreement is basically a contract which you and your partner make. If you are in a de facto relationship, you can make it at the beginning of your relationship or at any time during the relationship.

Marrying couples use to call these agreements “pre-nups” because they were made before the start of a marriage. These days both soon to be married, married and de facto couples can make theses agreements at any time in their relationship that suits them.
These agreements take into consideration a range of issues outlined in the Family Law Act like:

• How in the event of a relationship breakdown, all or any of the property or financial resources of either or both of the parties is to be dealt with.
• The maintenance of either party during the relationship and/or after dissolution of the marriage or the end of a de facto relationship.
• Any incidental, ancillary or other matters to those above.

Cohabitation agreements or de facto agreements, that confirm a person’s non-financial and financial rights when the de facto relationship comes to an end, are also recognised.

How do you create a Pre-Nup or binding financial agreement?

♦ You cannot get the same lawyer to act for both of you with financial agreements.
♦ You will each need your own lawyers to give legal advice about the effect of any potential agreement on your future rights (particularly in any future property settlement if your marriage or relationship breaks down) and about any disadvantages in making such an agreement.
♦ The agreement won’t be valid if you don’t get this advice.

♦ Either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice was provided to that party.

♦ A copy of that statement is then given to your partner or their lawyer.

♦ Both of your lawyers will need to take detailed instructions about your financial circumstances, future intentions (eg regarding children), contributions already made to the property, estate planning requirements (eg protection of children from other relationships) and the financial agreement you both wish to enter. In disclosing all of your assets and liabilities, valuations are normally obtained and accountants are often used to make sure things add up

♦ Your lawyers must provide each of you with a detailed letter of advice, so you understand what such an agreement means and that it is binding.
♦ The agreement is then drawn and negotiated between the two of you to iron out any concerns.
 When settled, the agreement is signed by the parties.

Good agreements mean preparation, preparation, preparation

Both Before you can make your agreement, your lawyer will need detailed information about:

♥ Your assets, liabilities, businesses, trusts, superannuation/pension entitlements etc (and you need to be honest and not hide or leave out details) by providing statements and valuations. Where this isn’t possible it’s important to give a fair estimate of the value of any other things.

♥ Details of your employer, salary and entitlements. It is important to provide tax returns to prove this.

♥ Your personal details (including your previous marital status, details of any children).

♥ You and your future spouse or partner’s intentions about the division of your property if you separate. It’s also sensible for any agreement to provide an additional settlement for any financially disadvantaged party. (eg. the partner who may have no income)

It is simple common sense if you want a strong financial agreement to avoid being mean spirited. Make reasonable provision for your partner if you have greater wealth by sitting down and negotiating this with them. Each of you should also assess what’s offered with your lawyer so you can have a non-emotional mind overseeing any negotiations.

But doesn’t it take the romance out of the relationship?

While this may seem unromantic, making a financial agreement promotes trust, certainty and transparency about financial matters between both of you. It can actually be part of a plan for a successful marriage or de facto relationship. The agreement provides a reference point for both of you and reduces the chance of disputes arising about financial matters during the relationship.

Many couples consider that this sort of agreement gives them real peace of mind by clearing the air over what can sometimes be a sensitive topic to discuss.

Cost

Financial agreements often require much research, detail, checking and confirming and reconfirming with each party, so they are not easy things to construct. Make sure you both find lawyers with skills in this area and ensure you leave enough time to get the agreement drawn up and agreed to. One lawyer in this field has advised that they can start at $5000, and if they’re really complex agreements, it could be more than twice that. The more complex the agreement the more you should ask your solicitor to get a Barrister with experience in this area to double check the agreement.

Also, if you’re getting married, it’s best to start the process at least 6 weeks before the wedding.
For de facto couples, you should get your financial agreement done as early as possible.

Financial agreements can be changed as your relationship changes

Think of your financial agreement as an evolving document. It may begin as a ‘pre-nup’ but it can be changed and updated if the dynamics change. Good examples are if you have children, or if either or both of you become wealthier. Changes in circumstances such as hard times or sickness may require the agreement to be revised.

Talk to your lawyers about having a revision clause in your agreement so that from time to time you can review and change it to more suit your circumstances. It’s important that the agreement remains fair and reasonable. Again, for more complex agreements any changes should be also looked over by a Barrister with experience in this area.

Can a Pre-Nup or financial agreement be overturned?

You cannot be provided with a cast-iron guarantee that your agreement, once entered, will not be subsequently set aside by the Family Court.

The only way a court can make orders for property settlement and spousal maintenance despite an agreement is if the court sets aside the agreement. The law has a number of grounds to set aside an agreement.

Click HERE to see what the law says on this

In summary, the main grounds are:

♦ An agreement was obtained by fraud. For example, one spouse fails to disclose a matter material to the agreement such as ownership of assets / businesses.

♦ One or both of you entered into the agreement for the purpose of defrauding or defeating a creditor of either of you. This means that you can’t use a binding agreement to divert assets away from creditors, or a trustee in bankruptcy.

♦ The agreement is void, voidable or unenforceable. For example, the requirements for a binding agreement were not fulfilled and these are complicated which is why you both should consult with a lawyer to get everything right in the eyes of the law.

♦ Since the agreement was made, a material change in circumstances that relate to the care, welfare and development of a child of the marriage has occurred.  As a result of the change, the person who has caring responsibility for that child, will suffer hardship if the agreement is not set aside.

♦ The agreement was signed because of pressure, harassment or some other form of unfair conduct (eg ‘gunshot signings’ of an agreement on your wedding day).

Money is ever present at weddings, Italian wedding circa 1952

Future changes to the law about financial agreements

Financial agreements are out-of-court, private agreements between the two of you outlining how property and other financial matters will be dealt with in the event of the breakdown of a marriage or de facto relationship. It’s always disappointing when Courts get involved due to uncertainty.  The downside of this is delays and added cost for both parties.

The Legal Eagle will keep you updated on whether any new laws are passed changing the current status.

Updated May, 2019