Category: Family Law

The legal system can be a daunting and traumatic, especially if you do not have the correct information or the right legal advice and guidance.  There are various myths about parenting matters created through the media or by word of mouth which may cause you to falsely assume your case is bound to lose.  However, every case is different and these myths are not necessarily how the Family Courts will determine parenting arrangements for your children.

The Mother Always Has More Power

It is often misconstrued that the Court will always favour the mother over the father.  There are Parenting Ordersno laws that state children should live primarily with the mother, rather than the father after separation.  The Court will decide who the children should live with, not based on gender, but based on the best interests of the children.

Parenting Plans Are Binding

Parenting Plans are agreements signed by both parents, but which are not submitted to the Court and formalised into Consent Orders.  Parenting Plans are not binding and cannot be enforced by the Court if they are breached.  Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. There are serious consequences and penalties if it is breached such as payment of fines, compensation or the other party’s legal costs, community service, or imprisonment.

For more information about changing a parenting plan, please refer to our blog post – I want to Change my Parenting Plan.

If We Don’t Agree, I Can Just Get a Court Order

Many parents believe that if they can’t agree then they can go straight to Court to have a Judge make an Order for them relatively quickly.  This is not the case.  Unless the matter is urgent, or there is a real risk of harm or abuse to the children, parents must attempt mediation and make a genuine effort to reach an agreement before court proceedings can be filed.  There is a significant amount of time and work involved in preparing court documents and there are often delays for several months before your case may even be listed for hearing before a Judge.

I Don’t Have to Consult With the Other Parent About Decisions Affecting the Children

Even if you don’t have Parenting Orders, the Court may consider that you should have consulted about major long-term decisions such as education, religion, medical appointments or relocating with the children.

For example, if you unilaterally change the children’s school or relocate with the children such that it impedes on their relationship with the other parent, the Court may make an order that the children be returned to their previous school. They could make also order that the children be returned to live within proximity to where they were living.

If you have Parenting Orders for joint parental responsibility for major long-term decisions, you are required to inform the other parent of any decision to be made, consult with the parent and make a genuine effort to reach a joint decision.  You may also have orders that set out certain obligations for you to disclose information to the other parent such medical appointments, travel plans, school information etc.  If you fail to comply with your Parenting Orders you could be in breach and the other parent may file a contravention application against – you which could have serious consequences and result in penalties being imposed by the Court, as mentioned above.

Children Can Make Their Own Decisions About Where They Live

Whilst children’s wishes may be taken into account, there is no set age at which a child can decide by themselves where they want to live.  When considering the children’s wishes, the Court will take into account their age, maturity, understanding of their decision and will consider various other factors when determining what is in the best interests of the children.  The children’s wishes are just one factor amongst many that are considered by the Court in determining parenting arrangements. The Court will not base their decision solely on the wishes of the children without having an objective look at all the evidence and facts of the case.

Divorce Applications Deal with Parenting Arrangements

This is incorrect.  Whilst your divorce application requires you to include certain details regarding parenting arrangements, this is solely for the purposes of the Court being satisfied as to the children’s well-being.  Your divorce application only deals with obtaining your divorce, so you are no longer legally married.  The only way to formalise your parenting arrangements so that they are binding and enforceable by the Court is by a Parenting Order, either made by consent or determined by a Judge.

So now you know…

With these misconceptions in mind, you are armed with some critical information to safeguard you against ignorance.

Now that you know what’s fact and what’s false – it’s time to put the wheels into motion and plan for your children’s future.

Whether you are looking for a Parenting Plan to offer some guidance with communicating, or a Parenting order to structure your day to day lives, there’s no better time to get started.

If you’re still unsure – our experts would be happy to talk to you to help you figure out which one you need. Call our friendly and understanding team on: (07) 3172 3777

Amongst all of the rapid changes of the twenty-first century, one of the most discussed social issues is gender diversity. Society has come forward in leaps and bounds with respect to the inclusion and rights of Australians who identify as LGBTIQ.

It’s no surprise that young people are among some of the most eager for the opportunity to choose their own identity.

As such, the Federal Circuit and Family Court of Australia has had to adapt their approach to the issues relating to transgender kids as gender dysphoria becomes better understood.

Presently, if both parents and treating doctors give permission for their child to begin transitioning, the Court no longer needs to be involved in the decision making. However, this is a recent occurrence.

As knowledge is power, we aim to outline the significant decisions the Court has made in the lead up to this approach. It may surprise you to learn that the Court used to be far more involved in the process than they are now.

However, it’s still no walk in the park. This article aims to demonstrate the uncertainty that still prevails amongst the Court and its interest in continuing to deal with trans children. There have been massive strides taken in understanding the importance of early treatment on the mental and physical health of a child – which is the primary concern of the parenting matters heard in the Court.

Mental Assessment: The Gillick Competency Test

Ordinarily, when dealing with matters of a child’s health, the Court would determine if a child is capable of making their own decision to undergo gender reassignment treatment by applying something known as the Gillick Competency test.

This test determines whether a young person is able to understand the physical, emotional and mental consequences of the decisions they make in the short and long term.

There is no specific age that determines if a child is able to make their own decisions. Instead, the Court must consider each individual case and determine whether the child is mature enough to be able to understand the effect of their decision.

Assessment of the test involves an investigation as to how the child deals with decision making, based on an examination of the child’s ability to understand and evaluate risks.

Physical Assessment: Gender Reassignment Therapy

When dealing with Gender Reassignment for children nearing puberty, there is a 2 Stage Hormonal Therapy that is recommended.

The first stage focuses on the prevention of the onset of puberty in the child’s biological sex. Children are given medication to suppress the release of gonadotropin hormones – the body increasing these hormones is the first event of puberty – which suppresses the onset of puberty itself.

By doing this, children are given the time to reflect over their gender identity without having to deal with the irreversible physical changes that occur to the body during puberty. This is important as not doing so can cause significant psychological harm to a person who identifies as transgender. These medications are considered safe and the first stage is totally reversible.

The second stage focuses on affirming the gender of the child. In the second stage, a person transitioning to female would be given oestrogen and a person transitioning to male would start testosterone.  This leads to the onset of the symptoms of puberty.

For transgender males, these symptoms include hair growth, voice deepening and muscle growth. For transgender females, these include breast development, testicular shrinkage and growth height maturation.

The administration of these hormones also carries a risk of impaired liver function. Some of these changes are irreversible.

RE: Alex

In 2004, the Family Court had to consider the situation of “Alex”.

Alex was born a girl; however, he was diagnosed as having gender identity dysphoria. This was the first case in which the Family Court had to consider whether to approve treatment for a transgender child. The treatment sought for Alex at the time was in two stages. Until he turned 16, the treatment was to administer oestrogen and progestogen to suppress his menstrual cycle. Once Alex was 16, the second stage of treatment would begin, involving the administering of male hormonal drugs.

Ultimately, Chief Justice Nicholson found that the treatment was in Alex’s best interests and authorised the treatment go ahead.

In making this decision, the Chief Justice set the landscape for how these matters would be treated. The Family Court would be required to weigh in on the treatment of children suffering from gender dysphoria and the two-stage treatment would be seen as a single irreversible treatment package.

It was notable that, while the Chief Justice did not think that Alex was competent to make this decision, the issue of competency was set aside as the Court believed that the treatment was in the best interest of the child.

RE: Lucy

The next big change in how the Court treats the issue of transgender children revolved around the case of Lucy.

In 2013 a government department acting as Lucy’s guardian made an application for Lucy to begin stage one treatment for her gender dysphoria. Lucy was born genetically and biologically male but identified as female. Lucy was 13 at the time and had just entered puberty and the stage one treatment was proposed as urgently required to prevent the physical changes that were soon to occur that would require surgery to reverse.

Justice Murphy changed the game by determining that stage one treatment was not something that would require the authorisation of the Court. It was Justice Murphy’s belief that stage one treatment was an appropriate avenue to prevent changes that would cause Lucy significant psychological harm until Lucy was Gillick competent and able to make the decision to begin stage two of hormonal therapy.

RE: Sam and Terry

Shortly after the decision in Lucy, Justice Murphy was able to address the issue of whether stage two of hormonal therapy would still require an application of the Court. In two similar but separate cases that were heard together, Justice Murphy found that due to the irreversibility of the Stage 2 treatment, the Court would still need to make a determination as to whether the therapy was in the child’s best interests.

RE: Jamie

Another important decision that helped shape the path of the Court’s approach was reached in 2013.

In Re Jamie, the Family Court was able to consider the previous decisions that had been made and lay down the guiding principles for future cases. The Court’s position at the time is summarised as follows:

• If a child was determined by the Court to be Gillick competent, the Court did not need to determine if treatment is in their best interests or make a decision as to whether to proceed with treatment. This was the case unless there was a disagreement involving the child, the child’s parents or the child’s doctor as to the need for treatment.
• Stage one and stage two are part of the same treatment package but were to be considered separately.
• Court authorisation was not required for stage one of treatment unless the child is subject to a guardianship order or there is a disagreement involving the child, the child’s parents or the child’s doctor as to the need for treatment.
• Court authorisation was required for stage two of the treatment.
• The Court would give considerable weight to the wishes of the child.

RE: Kelvin

In 2017 the Court was asked to confirm their decision in Re Jamie and determine if those principles set down were the correct way to go about the handling of children suffering from gender dysphoria.

They determined that stage two treatment did not require court authorisation. Provided the child consents to the treatments, the doctors are of the belief that the child understands the long-term effects of the treatment and the parents have no objection, stage two hormonal therapy could begin.

This was a significant departure from the decision in Re Jamie and only 13 years from the original decision in Re Alex.

This decision marked the Court’s eventual catch up with the medical profession on the treatment of gender dysphoria and was expected to have a significant impact on the health and wellbeing of transgender youth. The Court continues to follow this decision in 2019.

Where do we stand today?

While the Court no longer needs to intervene in cases where children have permission from both parents and their treating doctors, the frequency at which the Court has had to change their stance on the authorisation required for treatment shows that it is very possible that this approach will change yet again.

It is recommended that prior to your child commencing treatment that you seek advice from a solicitor as to what legal steps, if any, you should take.

If you or your partner do not agree as to whether your child is capable to consent to a treatment, you should see a solicitor immediately. The Court is still required to consider cases where either of the parents does not consent to the treatment. If you feel this may be you or your partner or have any questions relating to how the Court considers transgender youth, call us immediately on 1300 0 FORGE or email us at [email protected].

If I were to detail a list of frequently asked questions when it comes to family law matters, somewhere in the list would be – how do I change my child’s surname?

Often when parents separate, the idea of their child having an identity that relates to both their mother and their father is attractive for one parent. Long gone are the days of tradition where a child’s surname was that of the father. More and more, we are seeing children with hyphenated last names or, the recent trend is the mother’s maiden name as the child’s middle name.

Upon separation, it can be difficult for parents to see eye to eye on most things and your child’s surname name is one of those issues. Where one parent seeks to hyphenate or change a child’s last name, seldom is there an agreement by the other parent. So, what do you do then? What if there is a disagreement about changing your child’s last name? The answer lies in the hands of the Court who are ultimately charged with the responsibility of making decisions in the best interests of a child, when parents are unable to do so.

Depending on the circumstances, an Application to the Court to change a child’s name is ordinarily dealt with in the Federal Circuit Court / Family Court of Australia or the Magistrates Court. If you are seeking merely to change your child’s surname and not any other Orders in relation to your child, then the Magistrates Court is usually the appropriate venue. Otherwise, if changing your child’s surname is only one of the many parenting Orders that you are seeking then you are best placed commencing proceedings in the Federal Circuit Court / Family Court of Australia.

Irrespective of where you choose to bring your application, the best interests of the child will always be the paramount consideration for the Court. To better inform themselves when it comes to the best interests of the child, prior to ordering a name change, the Court will consider:

• The identity of the child during the relationship and whether a change would cause disruption, confusion, embarrassment or difficulty for the child;
• The short and long-term effects on the child should their name change;
• The time the child spends with one or both parents and the effect that a change in name would have on the child’s relationship with either parent;
• Any previous changes to the child’s name;
• The relevance of the name;
• The child’s identification with any siblings of the same name;
• The age of the child and their views and wishes.

Clear as mud? I thought so. Let’s look at some examples that should shed some light on this issue.

In 2019, in the case of Porritt & Dunford, the mother sought the child’s last name hyphenated where the father wished for the child to retain his surname. The child, who was 5 years old at the time, had always been known by his father’s surname and was registered at birth with his father’s surname. The father’s surname had strong cultural connections with his ancestors having always used this surname. The mother also had strong cultural connections with her maiden name. In this matter the Court held that the child’s surname should be hyphenated, citing the following reasons (amongst others):

• Hyphenated last names are not unusual.
• The inclusion of the mother’s last name will reflect the child’s cultural diversity.
• A change of name would not in any way affect the child’s relationship with the father.
• Having just commenced Prep and being very young, it is unlikely that the child’s last name would hold much significance to him either by way of identity or embarrassment for the child.
• The change would avoid any confusion when it came to the child’s step-mother, known by the father’s surname, being mistaken as her biological mother.

Often, where there is a dispute about whose surname the child should adopt, common sense prevails and the Court orders that the child’s surname be hyphenated. However, the Court has been known to change a child’s surname completely usually where a parent has remarried and is now using their new partner’s surname. This is strengthened when the children have step-siblings who share a surname which is not the same as the child’s.

For example, in the 2018 case of Hardwick & Spurr, the mother sought to change the child’s surname to that of her new husband, where the child who was ten years old at the time was a part of the mother’s family with her new husband who all had her new husband’s surname. In this matter, the biological father of the child had not spent significant or substantial time with the child in many years and the child had been brought up in a family that identified with her step-father’s last name since she was four. Her mother, her step-father and her step-siblings all shared a surname.

In this case, it was ordered that the child’s surname be changed completely to that of her step-father and mother. There were several other facts and circumstances in this case, but significantly:

• The father had spent very little time with the child since separation when the child was two years old.
• In that time the mother had remarried and had children who were the child’s step-siblings, and all identified with the same surname.
• The child had known and used her step-father’s surname since she was four years old.
• It would be more comfortable for the child to be able to use the same surname as the rest of her family though, the biological father will remain on the birth certificate.

There has been one somewhat recent case in 2016, where the father’s application to have the child’s surname changed to his surname was dismissed by the Court on the following grounds:

• The child was 13 years old at the time and had always had her mother’s surname.
• The mother had four other children who all had her surname.
• The child had not spent any significant or substantial time with the father since birth and expressed a wish to remain in the care of the mother and in her existing living arrangements. It is therefore likely that the child will experience embarrassment if an alteration to her surname is made so that it is different to the name of the parent with whom the child lives with.
• The child was likely to suffer adverse consequences if her name is changed in accordance with her father’s wishes in circumstances where she is settled, well adjusted, happy and performing well in school.
• The child is likely to suffer confusion of identity if a change of surname was imposed upon her given that the child had little to no significant connection with the father given his absence in her life.
• The child is likely to suffer a sense of dislocation and detachment if a change of her surname is imposed now, with effect upon her for the rest of her school career.
• A change to the child’s surname would have a serious negative influence on the relationship between the mother and child with whom she had lived with her entire life.

As you can see the case law on this issue differs depending on the circumstances of the particular child and that child’s family. Where there is a disagreement between separated parents about changing a child’s surname, you must seek legal advice about your options before you embark on commencing proceedings in Court. In our decades of experience, no two circumstances are ever the same. We tailor our legal advice to suit your individual needs and in pursuit of your desired outcome. Contact our office today to make an appointment for a one-hour strategy session to speak with one of our lawyers about your parenting matter.

An incident of violence has occurred. Can I suspend the current parenting orders?

If final parenting orders have been made in the Family Court or Federal Circuit Court and an incident has occurred which renders those orders inappropriate, it may be necessary to file an application for both a protection order and updated parenting orders.

When would this be considered necessary?

An example which commonly comes across our desks is an incident of violence occurring at changeover for the child.

Recently we were advised of a situation which occurred during changeover and, during a heated discussion regarding the child. The father of the child tried to hit the mother of the child but instead hit the door behind the mother. This was all in the presence of the child.

In the circumstances, it was most appropriate for the mother to file an application for a protection order, seeking a temporary protection order in the interim suspending the current parenting order.

Suspending current parenting orders

Under section 78 of the Domestic Violence Act, a Magistrate is able to vary, discharge or suspend a family law order. This is mirrored in section 68R of the Family Law Act which permits a court of summary jurisdiction, when making or varying a family violence order, to revive, vary, discharge or suspend an existing parenting order where the court is provided with material that was not provided to the family court when the parenting order was made.

What this means practically is that, if there is new relevant information which came to light after the parenting orders were made and which the family courts have not yet considered, the Magistrate can suspend the current parenting orders.

Returning to the Federal Circuit Court

Once the current parenting orders have been suspended, an urgent initiating application should be brought in the Federal Circuit Court for the material regarding the domestic violence incident to be considered by a judge and seeking appropriate parenting orders to be made.

Such an application would satisfy the rule in Rice v Asplund, namely that there has been a significant change in circumstances, allowing the applicant to seek parenting orders in circumstances where final parenting orders have already been made.

This should also be your next step if you are defending the application for a protection order and your parenting orders have been suspended. It is very likely in those circumstances that your contact with the child will have been limited substantially. Accordingly, it may be appropriate to seek an abridgement of time which would allow your application to be heard as soon as possible.

Important: This article is based upon circumstances which have arisen for a unique scenario that was brought to our attention. This article should not be relied upon in deciding whether it is appropriate for you to make an application to the court.

Legal advice for parenting orders and domestic violence orders

You should seek legal advice and have both your domestic violence orders and parenting orders considered by a legal professional before taking any further steps. Each person’s circumstances are unique and the correct course of action for one person or scenario may be completely inappropriate for another.

If you are unsure and would like some clarity regarding your scenario or circumstances, reach out to our team for a discovery session to identify your next best steps moving forward.

I have both parenting and domestic violence orders: Which orders should I be following?

An issue which we are seeing arise more and more often is conflicting parenting orders and domestic violence orders.

Being involved in multiple proceedings regarding parenting and domestic violence can be stressful and confusing. During this difficult (and often high conflict) period in your life, you need clarity regarding your legal rights and how you should be implementing court orders.

This article will outline what you should do if your parenting orders conflict with domestic violence orders.

What is a parenting order? 

A parenting order is an order issued by either the Family Court or Federal Circuit Court which outlines parenting arrangements for any children of a relationship. Parenting orders can be entered into by the consent of both parties or, where the parties cannot agree, are ordered by the court after a trial.

What are the implications if you do not comply with a parenting order? 

Parenting orders are legally enforceable. This means that if a party does not comply with part of the parenting order, they are said to have contravened the order.

Depending on the type of contravention, a party can then apply to the court pursuant to a contravention application.

There are penalties for parties who are found by the court to have contravened parenting orders.

What are domestic violence orders?

A domestic violence order, often called a Protection Order, is an order made by a Magistrate in the Magistrates Court in response to an Application for a Protection Order. A Protection Order will be made where an act of domestic violence is found to have occurred. It can include a wide variety of terms, most commonly that the respondent be of good behaviour and not commit an act of domestic violence.

What are the implications if you do not comply with a protection order? 

If you do not comply with the terms of a protection order, the breach could be reported to police. If you are charged and found guilty of having committed an act which is contrary to the terms of the protection order, you will have committed a criminal offence. 

When do parenting orders and domestic violence orders conflict?

A common example of inconsistent orders are orders relating to changeovers.

It is common for a child’s school to be listed in a protection order (including orders made on a temporary basis) as a place the respondent (being the person the protection order application was brought against) is not to approach.

Parenting orders often provide for changeovers to occur at the child’s school where the child is of school age and changeover is occurring on a business day.

What this means practically is that if the respondent, in complying with the parenting orders, attends the child’s school to pick them up, they will be in breach of the protection order which can have serious consequences.

The legal position on conflicting orders

Until recently, the position was that the parenting orders prevailed. This meant that, where the parenting orders provided for the child to be collected from school, even where a protection order was in place which prevented the parent attending the school, they could attend to carry out the orders.

Amendments to the Family Law Act 1975 (Cth) (“Family Law Act”) and the Domestic and Family Violence Protection Act 2012 (Qld) (“Domestic Violence Act”) have changed this position.

Section 78 of the Domestic Violence Act requires the Court to consider any existing parenting orders. It does not limit the Court’s power to make protection orders that are inconsistent with the existing parenting orders.

Importantly, when considering whether a protection order will contradict a parenting order, the court must not reduce the level of protection afforded under the protection order for the purpose of trying to ensure consistency with a family law order.

Practical effects

Parenting proceedings and domestic violence proceedings are often interconnected. Magistrates are aware of this and the implications orders impacting upon parenting orders may have on parents.

Accordingly, many Magistrates have opted to include additional terms when making a protection order. These effectively preclude a term of the protection order if it impacts upon an existing parenting order. An example is outlined below.

Typical term contained in a protection order:

“The respondent is prohibited from following or approaching to within 1000 metres of the aggrieved when the aggrieved is at any place” 

Notation made by a Magistrate in consideration of the practical implementation of a parenting order:

“This condition does not apply when having contact with a child or children as set out in writing between the parties in compliance with an order of a court, or when having contact authorised by a representative of the Department of Communities (Child Safety) with a child or children”

What you can do if this applies to you

If a clause such as the above has not been included in your protection order and the provisions of the protection order essentially prohibit your compliance with parenting orders, there are ways you can rectify this.

Variation

If both parties agree that the inconsistency between the orders is impractical and needs to be rectified. The easiest way to do this is to apply to vary the protection order to remove inconsistencies between parenting and domestic violence orders.

If you are the aggrieved, respondent, applicant or a named person (e.g. relative or associate named on the order), you can apply to make changes to the current domestic violence order.

You will need to complete a Form DV4 Application to vary a domestic violence order. This will need to be filed with the court. We can assist you with this process and answer any queries you have as to

Apply to the court

Alternatively, you may apply to the Family Court for orders that the family court orders prevail over the protection order.

The court must, in accordance with section 68P of the Family Law Act, to the extent to which the order provides for the child to spend time with a person, specify in the order that it is inconsistent with an existing family violence order.

Reach an agreement

It can at times be cheaper and easier to reach an agreement with the other parent as to another, more appropriate changeover location whilst the protection order is in place, which complies with both sets of orders.

It is not unusual for a parenting order to contain a paragraph which states something to the effect of “the changeover location is to be as agreed between the parties, failing agreement the child’s primary school”.

These types of orders are capable of being complied with even where one parent is prohibited from attending the school of the child, as an alternative location can be used for changeovers where both parties consent.