In child custody matters, when making a parenting order, the main consideration of the court is whether the proposed arrangements are in the best interests of the children.

The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it will look at what is best for the particular child in each individual case.

This presumption will not apply if there has been child abuse or violence by a parent or a person who lives with the parent).

DECIDING CHILDREN’S BEST INTERESTS

The court’s most important considerations are:

• protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt; and
• the benefit of children having a meaningful relationship with both parents.

If these two conflict, the need to protect the child is given greater weight.

The court must also consider:

• any views of the children, balanced against how much they understand and how mature they are;
• the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives;
• the extent to which each parent has been involved (or not) with decisions about major long-term issues about the children;
• how much time each parent has (or has not) spent with and communicated with the children;
• whether each parent has supported the children financially or failed to do so, for example paying child support on time;
• the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare;
• the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent;
• how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs;
• the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent;
• each parent’s attitude to the responsibilities of being a parent and towards their children in general;
• any family violence involving the children or a member of their family; and
• any other considerations the court thinks are important.

EQUAL SHARED PARENTAL RESPONSIBILITY

Parents have duties and responsibilities in relation to their children. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. It is not the same as equal parenting time or shared care.

Equal shared parental responsibility includes making decisions about children’s:

• medical matters
• religious matters
• cultural matters
• education
• living arrangements.

If the court finds both parents share parental responsibility, then the parents must try to come to agreement about major long-term decisions affecting the children.
Equal shared responsibility is not presumed if there has been child abuse or violence by a parent or a person who lives with the parent.

PARENTING TIME

If equal shared parental responsibility is presumed, the court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. It includes things such as a parent spending time with

If you need advice and legal representation regrading a child custody matter, please contact our offices for some advice over the phone.
Email: ghanna@gmhlegal.com
Tel: (02) 9587 0458.

INTRODUCTION

A traditional Chinese curse simply put is “May you live in interesting times” and ‘interesting times’ is the most charitable description of the daily happenings of those parents entering into the affray of child custody proceedings.

Seeing our own client’s daily personal battles in this arena has led me to believe that a person’s life is fraught with so much insecurities and anxieties at no greater time than during child custody court proceedings. These difficulties often leads our clients reacting irrationally and in ways that can irrevocably damage their own case.

I can say with some measure of confidence that none of our clients seriously intend on losing custody of their children, yet their conduct during the proceedings has always (and I really mean ‘always’) led me to believe otherwise.

For this reason, I have often wanted to commit to paper the greatest mistakes one can commit in their own child custody proceedings.

I am publishing this series not in their entirety, but gradually. Yes it may seem like a tease and product of the new-fangled era of content marketing, but it’s done simply to allow me enough time to write between dealing with various machinations of everyday life and the conduct of our legal practice.

1. WATCH YOUR BEHAVIOR

Starting at the beginning, we must always commence with an examination of our own behaviour. Being merely human, we are all liable to act erratically when the vicissitudes of life become so great a burden upon our shoulders.

Being honest enough to accept this one behavioural trait in ourselves would go far in allowing us to cover a myriad of our sins when going through child custody proceedings.

The Christian slogan to moderate behaviour, WWJD (What Would Jesus Do), could be tweaked slightly to What Would the Judge Do? Imagine the judge standing next to you in all your interactions with your children and your former spouse and you will certainly moderate your behaviour.

Moderating your behaviour includes not making threatening or hurtful comments towards your spouse or your children. You may believe that they words being said then disappear into the ether without a care or trouble in the world … but this is not always the case.

Your children are sponges and what they hear they repeat and what they see they will certainly do. What you do and say in private will be repeated to your spouse or your in-laws, your children’s school teachers or worse, a court appointed child physiologist.

Another danger is the written form of communications. I have seen our clients have entire conversations by SMS with their spouse or in-laws, not realising that these conversations can be misconstrued to their detriment. I have yet to see a good reason provided to me by my clients as to why they need to have a lengthy discussions via SMS with their former spouse.

I have seen the rise of emails and SMS messages being used in court and tabled as evidence against former spouses, and as happenstance may have it, they are accepted and often undisputable as evidence.

I’ve often buried my head in my hands at times reading written communications between spouses, and at the best of times my only response to the court is that whilst they say what they say, they definitely do not mean what they mean (yes, proving black is white in court is difficult even for lawyers).

Looking at your worst case scenario, abrasive or abusive written communications may cause you to loose custody of your children. However your best case scenario is not far off from your worst case scenario, in that they show to the court the underlying inability of the parents to co-operate with shared parenting arrangements. It goes to show that one’s biggest enemy in life is often their very own words.

In situations where your former significant other attempts to goad you into an argument, stop and think, WWtJD and make like a duck. It’s imperative in these situations not to let yourself be carried away into being forced to respond. When the tirade and rains come, do like the duck and don’t attack the rain, simply endure it and allow it to run off your back with your pride and dignity intact and know that these matters don’t last forever. The sun will eventually shine.

Having turned our attention to your behaviour towards others, it would be remiss of me not to mention under this heading your personal behaviour towards yourself. It’s quite necessary to turn on crutches to get you through the pain and agony of child custody proceedings. While turning upon the crutch of family, close friends, religion and God is fine, do not go down the slippery slope that leads to the dark abyss of alcohol, drugs, gambling and transitory relationships.

As all is fair in love and war, these matters do have a tendency to make their presence known in front of a judge, and will do you no favours in child custody proceedings.

All these things are easier said than done, but fighting for the sake of your children is a worthy objective.

Look out for the next article on the issue of “Alienation and Affection”.

In the meantime, call or email me for some advice over the phone or in person.
Email: ghanna@gmhlegal.com
Tel: (02) 9587 0458

Most people find their AVOs to be highly effective in preventing violence, intimidation and harassment. You have every reason to be hopeful that the defendant to your AVO will take proper notice of your AVO, and that you will have no further trouble.

In the end, however, an AVO is an order of the court not just a piece of paper. What gives an AVO power is the strength of the law but very importantly also, the action taken by various people to support it.

These people include you. You may need to take specific action to keep your AVO useful and strong. We hope that the ideas in this booklet will help you to do this. As well, we think it’s wise to ‘be prepared’ for the possibility that you might continue to have problems with the defendant, despite the AVO, and have some suggestions for planning to be safe.

What is an Apprehended Violence Order?

An Apprehended Violence Order (AVO) is an order made by a court restricting the behaviour of the person which the order is against. The purpose of an AVO is to protect you from violence and harassment in the future. An AVO usually states that a person cannot assault, harass, threaten you or go within a certain distance of your home or workplace.

An AVO is not a criminal charge but if the defendant breaches the AVO this is a criminal offence.

There are two types of Apprehended Violence Orders:

• ADVO – Apprehended Domestic Violence Order is made where the people involved are related, living together or in a relationship, or previously in this situation.
• APVO – Apprehended Personal Violence Order is made where the people involved are not related and do not have a domestic relationship, eg. they are neighbours.

How are AVOs enforced?

Most defendants comply with their AVOs because they recognise the power and authority of the law behind the orders. If a defendant disobeys an AVO, the order can be enforced by police action and by use of the criminal law. A breach of an AVO is a crime.

If there is evidence of a breach of an AVO the police can arrest and charge the defendant with the offence of contravening an AVO, and possibly also with other crimes (eg. assault). If convicted of the offence of breaching an AVO, a defendant may be imprisoned.

Police action may be affected by the wishes and the insistence expressed by you, the ‘protected person’ on the AVO.

If you believe there has been a breach of your AVO, and you want the defendant charged, you should make this clear to the police. In the end, however, the decision to charge a defendant rests with the police, not with you.

If the police charge the defendant, the matter will go to court as a criminal case. In the court hearing, the police prosecutor will lead the case against the defendant.

As the victim, you do not need your own solicitor. You may be asked, however, to give evidence about what happened.

What is a ‘breach’?

An AVO is breached when the defendant acts or behaves against one of the conditions in the AVO.

A breach can seem minor – especially to the defendant. But an act like sending a love note when the AVO tells the defendant ‘not to approach or contact the protected person’ is still a breach. Similarly, telephone messages or messages passed through friends can be breach of an order
‘not to harass’.

It is important to try to explain to a child who is protected by an AVO what types of behaviour by the defendant are forbidden by the AVO. Ask your child to tell you about this behaviour if it happens.

There are no ‘acceptable’ breaches allowed by the law. Any breach of an AVO, whether major or minor, is a criminal act. This will have been clearly explained to the defendant at court when the order was made.

AVOs and children

The trauma of domestic violence can have serious, short-term and long-term effects on a child’s physical and emotional well-being.

A child who has experienced domestic violence – either as a victim or as a witness – may benefit from counselling. To find an experienced counsellor for your child in your area, contact your local Women’s Domestic Violence Court Advocacy Service or Family Support Service.

Intimidation of children

Under new legislation children can be included on an AVO. Even if they are not named, all AVOs state that the defendant must not “engage in conduct that intimidates any other person having a domestic relationship with the protected person”.

This provision clearly includes your children. Intimidation of your child(ren), then, would be a breach of the AVO. As well as behaviour directed towards the child particularly, the child seeing or Current NSW law states “Intimidation” is defined as conduct amounting to harassment or molestation, or the making of repeated telephone calls, or any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

A copy of the AVO should be given to the children’s school.

Separate orders for children

Orders that you need that are specific to your situation may not apply for the protection of your children. Therefore it is better for your children to have separate orders made to protect them specifically.

Only a police officer can apply for an order for a child. You need to remember to ask for these orders, if required, when speaking
with the police officer.

AVOs and family law

Many people with AVOs are also involved in disputes about parenting arrangements. The court or your advisers may suggest you try ‘family dispute
resolution’ to resolve these issues. Family dispute resolution is a form of mediation where the parents in dispute meet together with a trained facilitator to try to reach agreement on parenting issues.

Going to family dispute resolution

Mediation may not be appropriate where domestic violence is a factor because the power imbalance means any agreement may not be voluntary and uncoerced.

If you decide to go to family dispute resolution and your AVO does not include this allowance, you or the defendant should apply to the court for a variation to the AVO so that the defendant can attend family dispute resolution with you without breaching the AVO.

You should only attend family dispute resolution with an accredited practitioner.

To find an accredited family dispute resolution practitioner in your area, call the Family Relationships Advice Line on 1800 050 321 or go to www.familyrelationships.gov.au.

Domestic Violence victims are exempt from attending mediation. The dispute resolution service must assess whether parties with a history of domestic violence should undertake mediation. They should also have procedures in place to ensure your safety.

Special arrangements may be made such as shuttle mediation (where the parties sit in separate rooms and the mediator goes between them) or
telephone mediation, or telephone shuttle mediation (where there are two phone lines so the parties don’t have to speak directly to each other).

If these arrangements are not offered to you, ask for them.

By clicking on the following link, you can download your copy of “Just a piece of paper? Making your AVO work for you” by Maree Livermore and Southern Women’s Group Inc.

If you have any questions regarding an AVO, call the experienced lawyers at GMH Legal for a FREE consultation:

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

Divorce and separation are painful for everyone involved–particularly children. At this challenging time children need support, love and contact with both parents.

Some certainty about the future is also very important for everyone. A written parenting plan, worked out between parents, will help clarify the arrangements you need to put in place to care for your children. It will help everyone involved to know what is expected of them and it will be a valuable reference as time passes and circumstances change.

What is a parenting plan?

A parenting plan puts the best interests of the child first. It is drawn up in good will with a shared commitment to your children and their future firmly in mind.

A parenting plan is a written agreement between parents covering practical issues of parental responsibility.

Your plan will detail practical decisions about children’s care in such areas as:

• parenting style
• living arrangements
• finances
• religion
• education
• health care
• emotional well-being.

A parenting plan is not legally enforceable; however it can have legal implications.

You can download Relationships Australia own guideline called “Share the Care Parenting Plan – Collaborative Parenting Apart” to know more about Co-Parenting arrangements. Parenting Plan

Call the experienced lawyers at GMH Legal for a FREE consultation:

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

Wallace & Stelzer and Anor [2013] FamCAFC 199

Background to the case

`A couple, known by the court as Mr Wallace and Ms Stelzer, met in 1998 at the Sydney club where Ms Stelzer worked soon after Mr Wallace split from his first wife.

He was 51 years old, divorced and came into the marriage with an “overwhelming pool of assets”. He has a net worth of more than $16 million.

She was 38 years old at the time, “had no assets” and had also been married previously.

They married seven years later and entered into a prenuptial agreement that Mr Wallace would pay Ms Stelzer $3.25m if the relationship failed within four years.

He married Ms Stelzer in October 2005, but not before a pre-nuptial agreement was signed, stating that Ms Stelzer would receive $3.25 million if the marriage broke down in the first four years.

They separated after two.

Legal arguments

Mr Wallace tried to renege on their pre-nuptial (binding financial) agreement, arguing that the relevant legislation was unconstitutional because it was retrospective. He argued that his pre-nuptial agreement was signed before the 2010 amendments and so his agreement should be deemed invalid.

Mr Wallace also fought to have the pre-nuptial agreement deemed invalid, claiming that Ms Stelzer behaved fraudulently by making “false promises of love and desire for children”.

He also said his lawyers did not give him adequate legal advice and make clear the pros and cons of the pre-nuptial agreement. He said that his lawyers had taken only minutes to sign it.

In 2004, the Family Law Act specified that the body of financial agreements had to state that legal advice had been given to clients, and solicitors were required to provide a signed certification.

However, a number of agreements were subsequently deemed invalid because there was nothing in the body of the agreement stating that advice had been given.

But in 2010, wording of the legislation was relaxed and the court could uphold an agreement that did not comply with the technicalities of the legislation.

The outcome

The Full Court of the Family Court ruled the pre-nuptial agreement was binding and that the amended legislation “can have a retrospective operation which is constitutionally valid”.

The woman who previously worked as a pole dancer is set to receive $3.25 million from her ex-husband after the Family Court ruled against his bid to have their pre-nuptial agreement overturned because of her “false promises”.

The ruling means that there is much more certainty about the validity of pre-nuptial agreements that were drafted between 2000 and 2008.

Professor Patrick Parkinson, a family law specialist at the University of Sydney, said divorce lawyers had been watching the case, known as the “pole dancer case” very closely.

“The ruling means there’s much more certainty about the validity of agreements that were drafted between 2000 and 2008.”

For those with Binding Financial Agreements, this is a good decision generally as it gives a lot of confidence to the community and to the legal profession, but there are still a host of problems with the legislation and the government needs to fix them.

One of those “technical problems” includes having lawyers come under more scrutiny, as the legislation still allows courts to analyse how solicitors gave advice to clients, despite the signed certification.

Contact us for a Free Consultation

If you have any questions about your pre nuptial agreement, call our experienced lawyers at GMH Legal for a FREE consultation:

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

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A girl aged 8 years old will be given vaccinations against the objections of her mother after a Family Court ruling. The Victorian mother was resorting to homeopathic methods to try to protect her child against disease.

But the court heard that in 2010, the girl’s father allowed his new wife to take the girl to a medical centre, without her mother’s permission.  There she was immunised for diphtheria, tetanus, pertussis, hepatitis B, polio, HIB, measles, mumps, rubella and meningococcal C.

The father told the court he hoped to continue to “secretly vaccinate” her because he did not want to play “Russian roulette with her health”.  He said he wanted to protect her from infectious diseases, and he was also concerned the child of his new wife, who is now pregnant, could contract a disease from an unvaccinated child.

The mother, who lives with her daughter, said they lived a “simple and healthy way of life’, eating organic and unprocessed food and avoiding toxins.  She said they built up the immune system of the child through homeopathy and through eating organic and biodynamic food.  Her daughter had already been given 28 homeopathic remedies to try to protect her from diseases.

Justice Victoria Bennett said evidence from a senior Royal Children’s Hospital paediatrician was that there was insufficient evidence to prove the efficacy of homeopathic vaccinations.

The parents must now ensure that the girl receives all vaccinations recommended for her age and in future.

In her ruling, made on October 19, the judge was critical of the father’s attempt to secretly immunise the girl, saying it reflected poorly on his attitude to parenthood.

She said the mother had openly followed a homeopathic immunisation program and had acted in what she thought were her daughter’s best interests.

Parents of almost 31,000 children have recorded a conscientious objection to immunisations, compared with 4271 objectors in 1999.

Should you have a Family Law query, do not hesitate to contact our Principal Solicitor Mr George Hanna for a free consultation on (02) 9587 0458 during business hours.