With children back to school and vaccinations now available for school aged children, we are starting to see disputes arise between parents as to whether or not their children should be vaccinated. So how do you find a resolution?

If you are in dispute with the other parent about whether or not to vaccinate your child – whether it be a vaccination for COVID or any other vaccination – you should initially consult with the other parent and attempt to reach an agreement on the issue.

EQUAL SHARED PARENTAL RESPONSIBILITY

Under the Family Law Act 1975, each parent is presumed to have equal shared parental responsibility in relation to the making of long term/significant issues affecting your children, including but not limited to:

1. Medical treatment
2. Education
3. Religion
4. Change of Name
5. Relocation

If you and the other parent are unable to reach an agreement in relation to the vaccination of your children, the Federal Circuit Court and Family Court of Australia has the power to make decisions about your child’s health and they will do so having regard to the paramount consideration – what is in the best interests of the child.

THE NATIONAL COVID-19 LIST

A National COVID-19 List has been created to deal with issues that have arisen as a result of the COVID-19 Pandemic. If an application is made for inclusion in the COVID-19 List, your application will be listed generally within 36 hours of the date of filing it. The first Court date is before a Registrar however and therefor the court can only make orders on that day by agreement unless the matter is set down before a Judge.

Ultimately, if a Judge is required to determine the issue at a Hearing, arguments may be made to the Court as to the detrimental impacts of the vaccination. However, in our experience, unless there is some expert medical evidence supporting that there would be an adverse effect on the particular child or children of having the vaccination, given the State and Federal Government policy in support of vaccinations, the Courts have been minded to make orders in support of the child or children being vaccinated.

The recent case of Makinen & Taube [2021] FCCA 1878 saw the Federal Circuit Court of Australia order that the Father have sole parental responsibility in relation to the issue of vaccinations and for that purpose, it was intended that the child’s vaccinations occur in accordance with the National Immunisation Program or as recommended by the children’s treating medical practitioner.

If you have a dispute with your former partner about whether your children should receive the COVID-19 vaccination, you should ensure hat you have expert medical evidence supporting how the vaccination would have an adverse impact on your children.

Otherwise, without any evidence of risk to the particular child, the Courts are likely to determine that it is in a child’s best interests to be vaccinated against COVID-19 and in accordance with the National Immunisation Program.

FILING AN APPLICATION

If you would like to file an application for inclusion in the COVID-19 List to deal with a COVID-19 vaccination issue, please contact our experienced family lawyers to seek advice as to whether you will meet the criteria for an application.

Toowong Family Lawyers – (07) 3870 8244

Albany Creek Family Lawyers – (07) 3264 7692

Noosa Family Lawyers – (07) 5449 7500

With couples spending more time together than ever before in these unprecedented circumstances, it is certain to increase the pressure on couples’ relationships.

Increased time at home, anxiety and financial strain are causing more arguments than usual between couples. Perhaps one or both parents have lost their job/business/substantial income due to the virus pandemic.

Couples may also be home-schooling children (who likely have cabin fever from being stuck at home) as well as trying to stay financially afloat. It can’t be denied that these are stressful times that will test the patience of many couples. Us lawyers are seeing this first hand from the increase in our family law matters.

So far through the coronavirus pandemic, our experienced family lawyers are being kept very busy with a variety of matters:

1. urgent court applications from parents not adhering to existing court orders – many using social isolation and social distancing as excuses (reasonable or not);

2. increase in domestic violence matters – because couples are stuck at home together in a toxic environment; and

3. new clients who have decided to end their relationship or marriage because social isolation has made them realise that they do not want to be in their marriage any longer.

Following the easing of social restrictions and lockdowns, we are predicting a “divorce pandemic” – a spike in applications for divorce from couples who have realised over the pandemic period that they no longer want to remain in the relationship.

However, now is really the time couples need their relationships and support more than ever and should use this time as an opportunity to reconnect and address issues that may have been simmering away for some time.

Here are our top 5 practical tips that you can use to help your relationship avoid becoming part of a “divorce pandemic” and come out even stronger once the pandemic is over.

1. GIVE EACH OTHER SPACE

While your time apart is going to be limited right now, bring physical space into the relationship where you can. This may mean working from different rooms (perhaps one upstairs and one downstairs if possible), one person wearing headphones or taking separate walks outside. This may also mean alternating who looks after the children from day to day, depending on which parent may be working or what their daily activities look like.

2. MAINTAIN STRUCTURE

For your own mental health and the stability of your relationship, aim to keep a daily routine as best as you can. Include time for things you would normally do, such as getting up, getting dressed, having set meal times, daily exercise, time apart and family time together.

If you are home-schooling children, make a rough scheduled of who will look after the children, so that you both get a break and responsibility are shared.

3. BE AWARE OF YOUR EMOTIONS

Many couples are experienced heightened emotions. This makes them more susceptible to being upset by their partner and less tolerant of their partner or of their children. Emotionally intelligent couples acknowledge their own emotions and allow space for the other person to have theirs.

Before you react, be aware of the emotions that you are feeling.

Acknowledging your emotions will allow you to speak more calmly and not say anything that may cause an argument and also allow you to be more understanding of your partner.

Try to get in some regular exercise whilst at home as this will assist with your overall mental wellbeing.

4. CHOOSE YOUR WORDS AND TONE CAREFULLY

What you say and how you say it matters. Being critical, defensive or outright refusing to address issues will not assist with problem solving in your relationship.

If you are wanting to say something that may be difficult for your partner to hear, aim to use a gentle “start up” and share your needs in a positive way.

Try not to lose your temper and remain calm.

5. MANAGE YOUR FINANCES TOGETHER

With many Australians out of work or experiencing a drop in income, financial strain is one of the major issues adding pressure to relationships.

Use this time to review your financial goals with your partner and regularly talk about how you can stay on track.

If you have taken a financial hit (as most couples have) throughout the pandemic, discuss strategies to get back on track with savings or improve cashflow. Also ensure that you research and are well up to date with any stimulus packages or payments that will be of assistance to you.

If you do decide to end your relationship during or following the coronavirus period, please feel free to contact our experienced family lawyers for expert family law advice – 3870 8244 (Toowong) or 3264 7692 (Albany Creek).

However, if you or someone you know is impacted by family or domestic violence, please call 1800RESPECT on 1800 737 732 or dial 000 is there is an emergency.

To work out the best parenting arrangement for your children, the Court must first consider what is in your child’s best interest.

To do this, the Court looks at the following main considerations:

• the benefit of children having a meaningful relationship with both parents
• the need to protect children from physical and psychological harm. This includes children seeing family violence, being neglected, or being physically or psychologically hurt.

The need to protect a child from physical and psychological harm, including family violence and abuse, is given the most weight because your child’s safety is paramount.

The Court also looks at:

• children’s views—the court will look at how much children understand and how mature they are; children don’t have to express views if they prefer not to
• the kind of relationship children have with their parents and other significant people, including grandparents, siblings and other relatives
• how much each parent has participated in making decisions about major long-term issues affecting the children including:
  • how much time each parent has spent and communicated with the children during and after the relationship
  • whether each parent has fulfilled or failed to fulfill their parental obligations (eg 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 difficulty will affect their right to have a relationship with each parent; this includes spending time with or communicating 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 children’s and each parent’s maturity, background (including culture and traditions), sex and lifestyle, and anything else about the children the court thinks is important
• Aboriginal or Torres Strait Islander children’s right to enjoy their culture (including with others of that culture)
• each parent’s attitude to the responsibilities of being a parent and towards their children in general
• any family violence involving the children or their family member
• any interim, final, non-contested or police issued family violence orders that include children or their family member
• whether the orders the people involved have applied for will reduce the risk of further court proceedings
• any other considerations the court thinks important.

Often the Court will also have regard to the previous parenting arrangements and any events that have occurred post separation.

Children’s wishes

The Court will not speak directly with your child.  If your child expresses any wishes those wishes will be weighed up against their age, maturity and understanding.  This is done by a Family Report Writer who is usually a psychologist or social worker.

Equal shared parental responsibility

The parties have a presumption at law that it is beneficial for a child if the parents have equal shared parental responsibility.  This presumption applies unless there has been child abuse or family violence by a parent or a person who lives with the parent. Of course, the Court may also take into account other factors.

Equal shared parental responsibility means both parents share decision making for major long-term issues about the children.

This includes making decisions about the children’s:

• education
• religious and cultural upbringing
• health
• name
• living arrangements.

Each parent will be responsible for the day to day care of the Child

Parenting Arrangements

If the court decides that equal shared parental responsibility applies in your case, then it must also consider whether it’s practical and in the children’s best interests for the child 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 spending time with children at special events such as birthdays and school concerts.

When deciding whether an arrangement is practical, the court will look at:

• how equal or substantial and significant time will affect the children
• how far apart the people involved live
• each parent’s ability to share care and communicate with one another
• any other consideration it thinks is relevant.

What the Court does not take into account

 What each parent wants

1. Who is to blame for the separation
2. What your Family think should happen

If you need assistance with your family law matter, please contact our experienced family lawyers today – Toowong family lawyers (3870 8244) or Albany Creek family lawyers (3264 7692).

To work out what each party is entitled to in a family law property settlement, the Court applies the following four-step process:

This four-step process is set out in the Family Law Act 1975 (Cth).

Step 1

We need to know the value of all the property from your relationship, this includes everything owned in a parties’ sole name, jointly with another person or through an entity or trust.

Property includes your liabilities and superannuation.

Step 2

We then look at each parties’ financial and non-financial contributions prior to and during the relationship and also post separation.  This includes taking into account inheritance, payouts or financial gifts received, windfalls, primary care of children and maintenance of the home.

We then weigh up these contributions and determined whether any percentage adjustment is required in a party’s favour.

Step 3

Next we turn our mind to the future and to the needs of both parties.  We look at the following:

1. The age and health situation of each party and whether any health issues impact the person’s ability to work full time
2. We look at what each party is capability to earn in the future and whether there needs to be an adjustment as a result of this
3. We also look at who has primary care of the child or children and any other relevant factor.

If there needs to be an adjustment made to a party once the above factors are considered, then this is also done as a percentage.

Step 4

Once the Court has turned its mind to the first three steps and determined each party’s entitlement, we then look at how to actually divide the property pool or another words, we look at who gets what.

The property must be divided in a way that is fair and reasonable in all the circumstances.

What the Court does not take into account:

1. Who left the matrimonial home and why;
2. Who is at fault or caused the separation;
3. What the parties believe they should be entitled to.

If you need assistance with your family law matter, please contact our experienced family lawyers today – Toowong family lawyers (3870 8244) or Albany Creek family lawyers (3264 7692).

Choosing the right family lawyer to help with your divorce/property settlement/children’s matters is an important decision facing people who are going through separation.

Not only is choosing someone with the right legal skills and expertise invaluable, it is important to choose a family lawyer that you feel comfortable with during one of the most stressful times in your life. Selecting the right family lawyer early should help produce the best result possible in the least amount of time and at a reasonable cost.

Here are some of our top tips for you to consider when selecting the right family lawyer for you.

1. Seek advice from the right lawyer as early as possible

Whilst the idea of seeing a family lawyer may be daunting, ideally you should seek advice from a family lawyer as soon as you know that separation is on the cards. The reason for this is that you do not want to be placed under the stress of finding and engaging your lawyer in a short time frame. Don’t leave it until you receive a letter from a lawyer acting for your spouse, demanding a quick response, as this will only cause you to hurry and engage a lawyer, without making sure they are the right fit for you.

Seeking preliminary advice early also means that you can understand your rights and obligations and use this knowledge to try to amicably negotiate an equitable settlement with your spouse at an early stage to prevent matters escalating. A quick and amicable settlement means that the matter can be dealt with efficiently and cost-effectively and you can move on with your life.
If it is not possible to seek advice from a family lawyer at an early stage, then you should engage a family lawyer as soon as possible after separation.

2. Only use an experienced family lawyer

Family law has grown in complexity since the introduction of the Family Law Act in 1975. Over time, the Family Law Act has undergone numerous and significant amendments and is regularly under review.

Each year the Family Law Courts determine thousands of cases which set precedents for how the Act is to be applied. This continuous process of change in the Family Law system means that lawyers working in the area must dedicate a great deal of time to keeping abreast of the law as it currently applies. This then improves their performance for their clients.

This means that choosing a lawyer who practices predominantly in or specialises in family law will best advance your case and ensure you get the right advice.

3. Do your research

If you find a lawyer that you are considering, research them – have they achieved many precedent cases in their career? If so, how many? This means that they know the law well and are willing to challenge existing precedents to get a just and equitable result for their clients. Don’t be afraid to ask a lawyer about their experience. Given you are about to spend your hard earned money on legal fees, it is preferable to find the right lawyer first time round.

There are other ways to research your proposed lawyers – check online reviews, Google, any social media that the lawyer or their fir may have and also lawyers’ websites. Check whether your proposed lawyer is an active participant within the family law profession. For example, have they delivered papers at conferences, sat on relevant committees or been asked for professional comment about topical family law matters? This information can help you assess whether a lawyer is indeed an experienced family lawyer and not just a lawyer who does family law.

3. Ask around

In modern society, where around 50 percent of marriages end in divorce, everyone knows someone who has recently or is currently going through a relationship breakdown. If you find yourself in similar circumstances, then speak to these people about their experience with the lawyers they may have encountered. Not everyone is willing to speak about their personal circumstances, but most people would be open about whether they had a good or bad experience with their lawyer. You could also ask a trusted professional for a recommendation to a family lawyer, such as your financial planner, accountant or conveyancer.

4. Meet your lawyer

When you have chosen a proposed family lawyer, make an appointment to see them as soon as possible. Take a close friend or relative to this appointment to help you absorb the advice you will receive, but also to assess whether the lawyer you have picked is the right family lawyer for you.

This appointment should allow you to assess whether you and the lawyer will work effectively together, if the rapport between you is good and if you feel that you will both be able to communicate openly and effectively. Finally, assess if you feel comfortable that the lawyer will get you the best result in an efficient manner.

Also question what sort of family lawyer you want – do you want a “bulldog” family lawyer who pushes hard for litigation who is usually aggressive in their approach. Or, would you prefer someone who is softer natured, but firm and calm in their communication? Both types of family lawyers have their merits, but you need to consider what type of family lawyer is going to be most suitable for you and your needs.

As with all professional relationships, if you do not feel comfortable with using the services of this lawyer for whatever reason, then acknowledge this early on and make other arrangements. If the lawyer works in a firm with other family lawyers, ask if there is another lawyer available to look after your matter.

If there are no other lawyers at the firm who can assist, find another lawyer using the steps above. It is better to change lawyers early if you are not happy, as this process may be more complicated once your lawyer has started substantial work for you.

What you don’t need is to select a lawyer who is not right for you, have them undertake initial work for you, then decide to change lawyers later on when you have incurred the legal costs of the first lawyer and then will have to pay the second lawyer to review everything undertaken by the first lawyer to continue with your matter.

5. Cost, service and results

After finalisation of your matter, the cost of the lawyer’s professional services, the quality of the service provided and their impact on the final result of your matter will influence your ultimate view of whether they were a good family lawyer for you to have used (ie. was your family lawyer good value for money).

The cost of the lawyer’s services will not be the only consideration as to whether you are happy with them. However, costs cannot be ignored when instructing a lawyer as it is imperative that your family lawyer is commercially minded enough to balance the amount you are spending and may spend on legal fees if your matter progresses with any possible settlement you may receive. You don’t want a lawyer who continues to litigate or send correspondence backwards and forwards with no real result except incurring more legal fees for you.

At your first appointment, your lawyer should discuss fee estimates with you. An ethical family lawyer will be upfront about their charges and give clear advice about costs. The lawyer will probably only be able to provide an estimation of fees, as much depends upon when your matter resolves, and how you spouse conducts themselves during the process. Even though you will only receive a fee estimate and not an exact quotation, this is crucial information for you to have early on. If your lawyer doesn’t raise the topic of fees with you, then ask about potential costs. If you lawyer isn’t open and clear about costs, then you might feel the communication is too poor to use their services.

When your lawyer sends through their Cost Agreement and Disclosure Notice, as required under the Legal Profession Act, ensure that it contains the same amounts as you were quoted during your initial consultation before signing and returning it to them.

Despite costs being a major factor in the consideration of whether a lawyer is the right fit for you, don’t choose your lawyer based just on cost alone. Sometimes using a lawyer with a higher hourly rate may ultimately see you with more money in your pocket at the end of the process. This is because you will be using an expert who is more efficient in what they do, and their final bill may be less than a lawyer with a lower hourly rate. Secondly, a true expert should help you achieve such a good financial result in a property settlement that using their services effectively pays for itself.

Even if a lawyer offers a fixed fee service – does this mean that you are going to be treated the same way as clients paying an hourly rate. Whilst you would like to think so, consider that if lawyers are charging fixed fees then they can’t afford to spend too much time on your matter which means that they are potentially doing less work for you then they may otherwise be doing for a client.

Finally, don’t forget the value of good service during a distressing time. When providing good service, your lawyer should help you feel comfortable, informed, heard and as influential as possible on the outcome of your matter.

By following these steps the best family and divorce lawyer for you can be selected as early as possible. Making the right choice in this situation will give you the best chance at a good result, in a reasonable time frame and at a fee which represents value for money.

If you need assistance with your family law matter, please contact our experienced family lawyers today – Toowong (3870 8244) or Albany Creek (3264 7692).

It’s that time of year when we all reflect on the year that was and we make resolutions to change our lives in the coming year.

Those resolutions are often about healthy eating habits and fitness. While of course, our wellbeing is important, it involves more than just eating habits and exercise. It requires us to be happy and content in our day to day lives.

If your day to day life is filled with conflict currently, it might be time to consider whether something needs to change in the New Year. Is a separation looming?

This is a hard and heartbreaking decision to make but one that might be necessary if your day to day life is constantly difficult and draining.

Think about it. If you are unhappy, chances are your partner and children are also unhappy so a fresh start may benefit you all.

The New Year is a chance for a fresh start. A fresh start brings challenges but also excitement and opportunity.  Separation does not always have to involve conflict. It may simply be the case that you and your partner reach a consensus that things are not working and need to change.  If you are in this position, get legal advice early on so that you can have a reasonable discussion with your partner about the separation and what it may look like.

If things look nasty, getting advice early can often help things become amicable again as Lawyers are not involved in the emotional side of your relationship.

If making this big decision is too difficult at this stage, then start with some simple preparation steps:

1. Inform yourself about your finances so that you understand what assets you own and exactly what debt you have.

2. Get some independence by having your own bank account, making some time for yourself, changing your social media passwords or getting some counselling to ensure you are ok.

3. See if your relationship can be repaired with counselling.

4. Make sure your children are safe, happy and content. If they are not coping, look at counselling options for them.

5. If safe to do so, have a discussion with your partner about how you feel and changes you wish to make.

6. If you or your children do not feel safe, reach out to the support services available including the police and DV connect.

If it is an emergency, call 000 immediately.  Sometimes, it’s easier to take small steps towards any goal. This makes the goal more achievable. If you need legal advices about how to handle the early stages of your separation or if you just want to understand you options, please contact us.

Our experienced family lawyers are contactable over the Christmas period – 38708244 (Toowong) or 3264 7692 (Albany Creek).

There is often a myth this time of year that the Christmas and New Year period is known

amongst family lawyers to be “Divorce Season”. As family lawyers in Toowong, we often get asked if this myth is in fact true.

Unfortunately, there is some truth to this myth, as traditionally we see a huge increase in the number of family law clients who have either separated over the Christmas/New Year period or are thinking about it and want to know what their rights are if they were to separate from their significant other. Why is this the case? The festive season brings with it Christmas and New Year’s – significant occasions for celebration – the end of the school year, extended holidays (perhaps with family members who don’t always get along) and the opportunity to reflect on the year that was.

In addition, these times can be particularly stressful for families, particularly when there may already be tension throughout the year between spouses and/or family members such as in-laws.

These factors often lead to the ‘perfect storm’ in the realm of family law. In our experience there are many factors that play a pivotal role in influencing people’s decision to separate at this time of year, which we will explore below.

The end of the school year

For many couples contemplating separation, it is sensible to wait until the end of the school year in order to minimise any disruption to children, particularly where one parent is wanting to relocate to another region with the children.

Whilst it would be ideal to have parenting arrangements in place ready for the following school year and to provide children with a routine, parenting matters often take months to resolve. Accordingly, parents should take this into consideration and obtain legal advice as soon as possible so that parenting arrangements can be put in place at the earliest opportunity.

Christmas

For some parents, the decision has been made to separate but decide to delay the actual process of separating as “Christmas is all about the children”.

That being the case, many parents decide to subjugate their own emotional well-being until after the festive season is over. The thought process being that parents want to wait until after Christmas before separating to ensure the kids have a joyous time, free from the emotional upheaval that separation brings.

Even when parenting arrangements are in place, Christmas can be a painful time for parents, as typically most arrangements allow for children to spend half of Christmas Day with one parent and the other half of the day with the other parent. Alternatively, arrangements may see parents alternating Christmases whereby one parent spends all of Christmas Day with the children and then the other parent spends all of the following Christmas with the children. This arrangement means that one parent won’t even see the children every second Christmas Day.

For some couples, Christmas is the trigger for them to decide to separate. Perhaps there has been tension throughout the year which has culminated at Christmas time and one or both parties decide that “enough is enough” if Christmas has been a stressful occasion.

The silly season

With festive season celebrations also comes an increased level of alcohol consumption. This poses a high level of risk where relationships are concerned.

Under the influence of alcohol, people tend to make poor decisions, say things to their spouse that they otherwise wouldn’t have and a rift can develop in the relationship.

Whilst tension may already exist in the relationship, the ‘silly season’ presents as a prime opportunity to highlight the issues between the couple.

The New Year’s resolution

The decision to separate is not often made quickly. Many spouses continue to live in intolerable relationships for long periods of time before finally making the decision to separate. Separation is a tremendously difficult and confusing time for families and it can often take an important moment in time, such as New Year’s Eve, before people finally resolve to do something about it.

In our experience, clients make the decision in the New Year to be happy, make the break from their spouse and have a fresh start at a new life. Further, people are more motivated and have a renewed sense of preparedness for change and new challenges in the coming year.

Financial stress

Financial pressure is one of the main causes of tension within relationships which means it is also one of the leading triggers which may cause one or both people to decide to separate.

The Christmas and New Year period can be a financially stressful time for some couples. This is due to the cost of Christmas gifts, celebrations, holidays, reduced hours or income over the festive season and shortly, thereafter, back-to-school costs for the children. This means that any financial pressure that exists in a couple’s relationship is likely to peak during the festive season.

Conflict with the extended family

Holidays can mean that the whole family is couped up together in the same place, maybe for just one day or it may be for the whole Christmas/New Year period.

Spending longer periods of time with extended family is often a motivator for separation. On one hand, time with family can provide people with much needed support, comfort and guidance when making important decisions such as separation. On the other hand, family gatherings can bring simmering family issues to the boil.

Family gatherings can be challenging for families that do get along, let alone for families who don’t, and conflict between extended families and in-laws can trigger people to decide to separate.

Moving Forward

Whilst none of the factors outlined above may in isolation lead to separation, they tend to overlap during the Christmas/New Year period.

Further, whilst unfortunately this time of the year does see an influx of couples separating, having an experienced family lawyer to assist can make the separation process much smoother and less emotional for both parties.

It is important that couples who have made the decision to separate seek legal advice as soon as possible, rather than waiting until the end of the year, so that an agreement can be put in place between the parties and both can move forward with their lives as soon as possible.

If you are thinking of separating or have already made the decision to separate and need assistance with property or parenting matters, please contact our experienced family lawyers on 07 3870 8244 (Toowong office) or 07 3264 7692 (Albany Creek).

Last week, we gave you a broad overview of the impact (or otherwise) legalising same sex marriage would have on our current family law system.

The purpose of this blog is to consider the impact the outcome of the postal votes may have on parents entering into agreements or Orders regarding children’s matters.

The Current Debate

As with any debate, there are currently two opposing views:

• the “No” campaign is based on the concept that marriage should remain between a Husband and Wife, children should be raised by a Mother and Father and should be protected from being bullied by their peers due to being raised in a different environment;

• the “Yes” campaign is based on same sex couples being allowed to marry if they chose, have the same rights as heterosexual couples, raise children and strengthen their family unit.

Regardless of the reasons behind each campaign, it is up to each individual to form their own views, beliefs and decisions on this topic.
To help you make an informed decision, below is a summary of the impact legalizing same sex marriages will have on parenting agreements and Orders.

Parental Responsibility

Currently each parent of a child who is under 18 years of age has parental responsibility at law unless otherwise ordered by the Court. This means that parents have duties, responsibilities and powers at law to make decisions for their child. Decisions would typically include enrolling a child in a particular school, determining whether your child will be religious and making decisions about your child’s health and wellbeing.

Same sex couples already have the ability to apply to the Court for parenting Orders and parental responsibility. Therefore currently a person’s marital status has no impact on the Court’s decision about such matters. This is not likely to change.

In terms of adoption and artificial conception, same sex couples can already be classed as the legal parents of a child and are able to be named on the birth certificate. This means, that there will be very little (if any) impact on adoption or artificial conception.

The Question of what is in a Child’s Best Interests

The marital status of a person seeking parenting Orders for a child is irrelevant in terms of the Court’s discretion. What is and will remain the paramount consideration for the Court is what is in each child’s best interest and whether they are safe.

To determine what is in the child’s best interests, the Court looks at a number of factors such as:

• the benefits of a child having a meaningful relationship with both its parents;
• protecting the child from abuse, neglect or psychological harm (this is of course given greatest weight);
• any views expressed by a child deemed mature enough to give an opinion;
• the involvement each parent has had with the child and their upbringing;
• the relationship the child has with extended family and siblings.

So whatever your views in this debate, when it comes to parenting Orders it is important to understand that the Court will always have a primary focus on the best interests of the child and ensuring that child is safe.

If you would like to know more about Parenting Orders, please contact our experienced Family Lawyers on (07) 3870 8244.

By now most of you would have received your postal vote forms in the mail, heard campaigns on the television, debates on the radio and received campaign materials in the mail or in public places. Regardless of your view, it is important during this time, to reflect on our current family law system and the impact legalising same sex marriages may have on that system moving forward.

The Definition of Marriage

The greatest impact legalising same-sex marriage will have revolves around the definition of “marriage” and therefore the question of who is able to marry in Australia pursuant to the Marriage Act 1961 (Cth). This is most certainly a hot topic of debate at the moment.

Currently the definition of “marriage” in the Marriage Act 1961 (Cth) is the union of a man and women to the exclusion of all others, voluntarily entered into for life. Obviously, if same sex marriage is legalised that definition will likely change to include the union of people who are in a same sex relationship.

Primarily the postal vote is centered on this very issue.

The Ability to Divorce

Property and Children Disputes

The laws enabling a person to make an application to the Family or Federal Circuit Court for property or children’s Orders will not need any real change. The Family Law Act 1975 (Cth) already allows parties to a marriage or de facto relationship to apply for property settlement and/or parenting Orders following separation.

Same sex couples already fall within the definition of a “de facto relationship” and therefore already have the ability to seek such Orders from the Court.

This means that legalising same sex marriages will have no real impact on the ability to seek Orders about parenting or property matters so long as persons to a same sex relationship can establish, just like heterosexual couples, that they had been a couple living together on a genuine domestic basis.

The Impact on Adoption

And then one most consider the ability for same sex couples to express interest in adopting a child in Queensland.

From 2009 until November 2016, same sex and de facto couples were not able to express interest in adopting a child in Queensland. This all changed in November 2016 when the eligibility criteria were extended by the Queensland Government.

Accordingly, legalising same sex marriage will have little impact on the ability of a same sex couple to adopt a child in Queensland provided they meet the eligibility requirements and criteria.

So regardless of your views and beliefs, it is important that you make an informed decision with an understanding of how the changes will impact on the current Family Law System.

If you need assistance with your separation or divorce matters, please contact our experienced family lawyers on (07) 3870 8244.