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What are Consent Orders and How Can They Help My Family?

If you and your former partner have agreed on an approach to parenting and/or financial and property arrangements, you can formalise your agreement by entering into Consent Orders. Consent Orders can only be entered into when you and your former partner have reached an agreement, whether between yourselves, or with the assistance of your family law lawyers. Consent Orders are legally binding and enforceable by the Family Court. They can be used to vary or discharge existing family law Orders that may be outdated or impractical. Consent Orders are final and can be difficult to change without agreement. It is therefore imperative to seek legal advice from family law lawyers about your family law rights and entitlements.

Consent Orders must be filed in the Family Court of Australia together with an Application for Consent Orders. The fee for entering into Consent Orders is $165, or free if you are eligible for an exemption of fees.

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Family Dispute Resolution: How to Resolve Your Parenting Dispute Without Going to Court

In response to the growing risks of COVID-19, the family Courts have begun postponing court dates for non-urgent matters. Unfortunately, this means that it may be many months before your application for child custody is heard before a Judge. Parents should be encouraged to look for alternative ways to resolve their dispute such as through Family Dispute Resolution.

By law, parents are normally required to make a genuine effort to resolve parenting disputes before beginning Court proceedings. This can be achieved by attending Family Dispute Resolution also known as FDR for short, with a certified FDR practitioner. Your FDR practitioner can then issue you with a section 60I certificate which you will need to provide to your child custody lawyer to file with your Application. You will then have 12 months to commence proceedings with the Certificate otherwise you will need to obtain an updated certificate.

Your FDR practitioner has the power to dispense with the FDR requirements if they believe that it would be inappropriate due to a party unable to negotiate freely. Unequal bargaining power and a history of domestic violence are matters the practitioner may consider when deciding whether the mediation is appropriate.

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My Ex Won’t Let Me Take My Kids Overseas

During child custody proceedings, parents cannot remove their children from Australia without either:

  1. The written consent of the other party, or
  2. A Court Order providing for overseas travel.

The most cost efficient way to take your children on an overseas trip is generally to negotiate with your former partner to obtain their consent and then put this into writing.

If you cannot come to an agreement, you may be able to make an application to the Family Court with the assistance of your child custody lawyers. Ultimately, the Court will make its child custody decisions in the best interests of the child. The Court may make an Order for the child not to travel overseas, or make an Order allowing the child to travel. In some circumstances the Court may make an Order for you or your former partner to pay a security if the child is allowed to travel to better ensure the child’s return.

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How Interim Child Custody Proceedings Can Help You

Interim proceedings allow the Court to make temporary child custody Orders that are effective until the matter can finally be determined. An application for interim Orders cannot be filed without an Application for final Orders. At the interim hearing, some of the issues the Court may consider include who the child should live with until the final hearing, whether the child can travel overseas and whether the child can relocate to another city.

The mere fact that the children are currently in a well settled environment does not prevent the Court from making a child custody Order for parents to spend time with the children. Rather than preserving the status quo, at an interim parenting hearing, the main objective of is for both parents to have meaningful involvement in their children’s’ lives. Child custody law is in favour of substantial involvement of both parents in their children’s lives including both parental responsibility and time spent with the children. This rule is subject to the need to protect the children and provided that it is in the best interests of each child. The Court will consider whether equal time or significant involvement by both parents in the children’s lives is appropriate and practical.

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Divorce Lawyer in Focus: Carolyn Munk

Carolyn MunkCarolyn is a Family Law specialist, having practiced exclusively in Family Law since 1987. She has been an Accredited Specialist in Family Law since 1993.

She joined the firm in March 2009, when her firm Watson Stafford Family Lawyers merged with Matthews Folbigg Lawyers.

Carolyn practices in all areas of Family Law and de facto relationships law and deals with issues concerning a relationship breakdown including property settlement, parenting disputes and child support.

She appears regularly in the Family Court of Australia and Federal Magistrates Courts at Sydney and Parramatta, the Supreme Court of NSW and Local and District Courts of NSW. Carolyn has worked as a Court Registrar at the Family Court, which provided invaluable experience in advocacy and dispute resolution.

There are 8 lawyers in the Matthews Folbigg Family Law Practice Group who are often working together to secure very positive outcomes for our clients.

Click here to visit more of our Family Law Lawyers.

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Unhappy with your current Parenting Arrangement? How to Change your Family Court Orders

In 2016, the Federal Circuit Court of Australia made Orders with the consent of both parents. In summary, they were that the child live with the mother and spend time with the father and the time with the father was to increase as the child increased in age. The parents lived, and continue to live in different towns. In 2018, the father’s divorce lawyer brought fresh proceedings based on two possible scenarios:

  1. If the mother relocates near the father, the child to spend equal time with the parents, or
  2. If the mother does not relocate, he sought Orders in the reverse so that the child lives with him.

In order to revise family law court Orders, the case of Rice & Asplund [1978] FamCA 84 requires the existence of a material change of circumstances. The father’s divorce lawyer argued that since the time of making the consent Orders, his circumstances had changed in three ways:

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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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What Do Child Custody Laws Say If Your Child Doesn’t Want To See the Other Parent?

Relationship breakdown can often be a difficult and turbulent time for your children. To navigate this time, some families seek parenting orders from the Court to determine where the children should live and when they can see the other parent. But what do child custody laws say if your child does not want to see the other parent? According to child custody laws, certain obligations exist for the resident parent to comply with the Court orders, some of which are considered below.

Positive Obligation to Encourage Access

In the matter of Stevenson and Hughes (1993) 112 FLR 415, the mother pinned the father’s telephone number near the telephone and informed the child they could call the father whenever they liked. On a separate occasion, the mother took the child to the husband’s residence in accordance with the orders but the child refused to go inside. The father made an application for contravention, claiming that the mother contravened the Court orders by failing to give the father access to the child. The Court found that “an access order imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.” The Court found that the wife had not done all that was reasonable in the circumstances to encourage the child to come to the telephone and speak to the father but had, in effect, issued an invitation in a manner in which the child was given the option to refuse.

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