Cairns Family Lawyers | Family Law

What you both need to decide here is whether you will even include different arrangements on special days or whether special days will be spent ‘as they fall’, in other words your children will spend time with each parent in accordance with the parenting arrangement that you have agreed.

Some children actually don't like having to divide their day between their parents. Some parents take the view that if the child’s birthday falls on a day the child is with the other parent, they will get to spend time with the child when they next see him or her. That way the child has 2 birthday celebrations and does not have to divide their day.

The same reasoning applies in relation to Christmas Day. Depending on logistics, it might be a better experience for a child to spend the entire day with one parent and then perhaps Boxing Day with the other parent. If parents live reasonably close to each other and children want to see each parent on Christmas Day, another variation is to divide Christmas Day in half.

A further variation is the children spend a block of time with one parent in one year and then the with the other parent the following year. The block could be from Christmas Eve until the 26 or 27th of December.

Another variation is that if school holidays are being shared, children do not see the other parent at all. If Christmas school holidays are equally shared between parents the parent who has the children for the first half of the Christmas school holidays will always have Christmas Day. Have a look at the blog on school holidays and see that a common order is for one parent to have the first half of the Christmas school holidays in even numbered years and the other parent has the first half in odd numbered years.

The important thing to remember about special days is that the days are about the children not the parent.

With this in mind some parents do not seek orders to spend time with children on their own birthdays.

The following are examples of common orders that are made in relation to special days. The times are just by way of example. If there are events of cultural and/ or religious significance, the same wording can be used.

Mother’s Day/Father’s Day – (a whole weekend, from the night before, or just the day)

The child shall spend time with the Mother on the Mother’s Day weekend from 5.00pm on the evening before Mother’s Day until school drop off Monday morning, if not already in the mother’s care.

The child shall spend time with the Father on the Father’s Day weekend from 5.00pm on the evening before Father’s Day until school drop off Monday morning, if not already in the father’s care.

OR ( with the same applying for Father’s day)

The child shall spend time with the Mother on the Mother’s Day weekend from 5.00pm on the evening before Mother’s Day until 5pm on Mother’s day, if not already in the mother’s care.

OR ( with the same applying for Mother’s day)

The child shall spend time with the Father on Father’s Day from 9.00am to 5.00pm if not already in the father’s care.

Christmas and Easter weekend

Only if the parents are in the same location for the Christmas and Easter period:-

a. In each even numbered year the child will spend time with the mother:
i) from 4pm Christmas Eve until noon 27 December, and
ii) from 4pm on Good Friday until noon Easter Monday.

b. In each odd numbered year the child will spend with the father:
iii) from 4pm Christmas Eve until noon 27 December; and
iv) from 4pm on Good Friday until noon Easter Monday

NOTE – “Only if the parents are in the same location” - This order works well if parents are sharing the Christmas school holidays. It enables each parent to go away with the children during their time, and only if they're not going away and parents happen to be in the same location would they agree to share the Christmas or Easter period. If these are the orders you are contemplating make sure that you think about which parent gets the time in even/odd numbered years and make sure that works with who gets the first half of the Christmas school holidays. The person who's getting the first half of the Christmas holidays is not the parent who would get the children from Christmas Eve using the example above.

Child’s Birthday

That the child will spend time with the parent who does not otherwise have the child in their care on the child’s birthday as agreed to between the parents and in default of an agreement as follows:
a) On non-school days from 12pm until 5pm; and
b) on school days from afterschool until 5pm.

Parent’s Birthday

The child shall spend time with the Mother on the Mother’s birthday from 5.00pm on the evening before her birthday until 9am the day after her birthday, if not already in the mother’s care/ or a block of time on the birthday, not overnights.

The child shall spend time with the Father on the Father’s birthday from 5.00pm on the evening before his birthday until 9am the day after his birthday, if not already in the father’s care.

Such arrangements can be of any configuration – for example, one night a fortnight through to 6 nights a fortnight or just time during school holidays.

The orders need to specify, with whom the children will live and then, how much time the children will spend with the other parent and what that time looks like.

Here are some examples.

The children live with the (Mother/Father).

Unless agreed otherwise in writing the children spend time with the (Mother/Father) as follows:

a) during the school term each alternate weekend from ( say) Friday after school until (say) the commencement of school the following Monday morning. If Monday is a public holiday or a non-school day the children's time is extended until the commencement of school the next day; and

b) During school holidays ( set out how the time will change during school holidays, if it is going to. See our blog on school holiday time.)

There are many different variations. Some arrangements might be Friday after school until Sunday afternoon which works well for children who need to come home to their primary base to get ready for school the next morning. Some arrangements extend the alternate weekend to Wednesday or Thursday which would mean the children spend 4-5 nights a fortnight with that parent.

Such an order would look like this, and the days are just examples.

The children live with the (Mother/Father).

Unless agreed otherwise in writing, the children spend time with the (Mother/Father) as follows:

a) during the school term each alternate Thursday from after school until the commencement of school the following Monday morning. If Monday is a public holiday or a non-school day the children's time is extended until the commencement of school the next day;

The advantage of a 5/9 – 4/10 arrangement is that the ‘alternate weekend’ parent still gets to have some involvement with the children's school life.

Regardless of how many nights children live with each parent the best arrangements for them will be ones that are consistent and certain; but that have some degree of flexibility to allow parents to make other arrangements if the need arises.

This flexibility can be achieved in a court order by including the order “Unless agreed otherwise in writing “ as we did above, or “the children will spend time with each parent as agreed between them in writing, but failing agreement…”.

“In writing” covers texts emails and messages via a parenting app.

However to note, parents are always able to vary court orders by consent Even if the orders do not say anything about agreeing otherwise. It is advisable to always make sure the variation is in writing ( a text is fine) so that there can be no misunderstandings.

What is this order all about?

This order establishes how parents will make important decisions for children. The sort of decisions we are talking about are described as ‘major’ and 'long-term’ issues relating to a child – to be distinguished from day-to-day issues. For example, what the child eats for breakfast, and whether the child goes on a play date.

This is the definition in the Family Law Act:

"Major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)  the child's education (both current and future); and

(b)  the child's religious and cultural upbringing; and

(c)  the child's health; and

(d)  the child's name; and

(e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

Some examples of what would be considered a “Major long-term issue” is:

• what school does a child go to
• an important medical decision, for example whether a child has an operation;
• what religion a child will be;
• how will the child learn about and be exposed to their culture;
• changing any part of the child's name;
• moving away from a place with a child.

Parents are generally expected to share the responsibility of making important decisions, and parents are expected to consult with each other and make a genuine effort to reach a joint decision on these matters.

An order that provides for parents to share decision making would be drafted like this:

Shared decision making

1. The father and mother have joint parental responsibility for making decisions about major long term issues for the children ( full names and dates of birth for each child) (“the child/ren”).
2. For the purposes of these Orders, a major long-term issue shall include, but is not limited to, issues about: -

(a)           The children’s education (both current and future);

(b)           The children’s religious and cultural upbringing;

(c)           The children’s health;

(d)           The children’s names/name; and

(e)           Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

3. The father and the mother have responsibility for the day-to-day care welfare and development of the children when the children are in their respective care.

Sole Decision making

However, there will be circumstances where it would not be in a child's best interest for their parents to share decision making. Such circumstances include for example, where there has been family violence and it would expose a parent to a risk of harm if they had to consult with the other parent and/ or because of the family violence the parent is simply unable to properly consult with the other parent.

Other situations are where parents cannot communicate with each other without conflict; where a parent is difficult to contact; and also includes scenarios where joint decision making would not be possible because of issues with the other parents such as mental health, drugs and alcohol.

In these circumstances the more appropriate order would be for one parent to have sole decision making. Important decisions for children need to be made without the risk of parents reaching an impasse because they cannot agree and so the important decision is unable to be made for the child.

An order for sole decision making would look like this.

The (insert which parent) shall have sole parental responsibility for making major long-term decisions for the child/ren, (insert full names and dates of birth for each child) (“the children”).

You can go on to add order 2 in the above example which sets out what those decisions are.

It is important to carefully consider whether sole decision making is in the best interests of children. As a general rule of thumb where children live in a shared care arrangement or they spend significant time with each parent, the usual best outcome would be for parents to share decisions. Similarly, if a child lives primarily with one parent and spends little time with the other parent, sole decision making to the parent with whom the child lives may be the most appropriate order.

A parent who has sole decision making will decide what school the child goes to, what religion the child will be, that parent will make all health decisions, that parent has the ability to change the child's name without the consent of the other parent, that parent can obtain a passport without the consent of the other parent, and that parent can relocate away from the other parent with the child without the other parent’s consent. However, a parent would not be able to relocate if by doing so, any orders for time spending with the other parent would not be able to take place.

A compromise position

A good compromise in circumstances where it would be best for a child if one parent did make the decision solely, but where parents have a level of communication, is an order where the parent making the decision will let the other parent know what decision they propose to make, consider the other parent’s point of view, make the decision and let the other parent know what that decision is.

That sort of order would look like this:

In exercising sole parental responsibility the ( insert parent  - “P”) must:

1. Advise the (other parent - OP) in writing (?) days prior to making any long-term decision required to be made in relation to the children, including details of why the decision is required and the options being considered by the (parent);
2. Allow the OP ? days to respond to the P’s proposal:
3. Prior to making the final decision, the P must consider the OP’s response. However, the decision shall be solely the Ps to make; and
4. The P must inform the OP in writing of his/her decision within ? days of making such decision.

TO NOTE - Decision making does not need to rest with a parent. The orders could provide that a grandparent, for example, could make decisions.

This is a series of blogs designed to assist you to understand and draft the different sorts of parenting orders that you might be asking the court to make. The examples that we will give you are the sort of orders that could be sought in an application for consent orders, or in a disputed matter.

A good set of parenting orders should cover the following issues:

• Decision making
• If a child is going to live in an equally shared care arrangement, what does that look like?
• If a child is going to live primarily with one parent, which parent will that be and on what days and what time will the child spend with the other parent?
• Communication between the child and the parents
• Time on special days
• Arrangements for school holidays
• What information each parent will receive about the child and how
• Whether any restraints are required.

We will cover each issue in detail and give you different scenarios so that you can choose the one that best suits your child.

Are you surviving this separation? 

Chances are that if you are reading this, you have reached an agreement with your former partner, or you are hopeful of doing so. In that case you might be feeling positive about this process, which is great. If not, this may help you, or someone you care about who is going through separation. 

The first thing to know, is, it is OK to be sad. According to the experts, a separation is up there at the top of the list of life’s most traumatic experiences, underneath the death of a loved one. For many, separation is like a death. It is the end of a life as you knew it. So don’t pretend it is all OK. 

You’re not alone. Call on the support of family and friends. Better yet, get some professional assistance with a counsellor or psychologist. I recommend this to clients even if they feel they are doing fine. It doesn’t hurt to talk it all through and make sense of your feelings.  

If you have children, you need to be doing OK. Just like in the aircraft where you adjust your mask before fitting theirs, your well being is so important.   

Children WILL be affected by separation.  Every child will experience some emotions - they can be surprised, angry, sad, confused, insecure, frightened, and also grieving for the loss of the family. They can feel responsible. Chances are good, they still love the other parent and miss them greatly. They might start behaving differently at school and home. It is great if you can recognise the signs your child is struggling with the separation and get them some help, as early as you can.  

See our blog “How to help my child through separation” written with a child psychologist making sure I have it right.  

It might bring some comfort, to know there are stages of separation. If you are lucky at the end of a relationship you might just feel relief. But often what you feel is grief. It might help to recognise the stages of grief, which applied to a separation might look like this: 

• shock and denial – how can this be happening? Especially when you are not the instigator of the breakup or even worse, were not expecting it
• anger and blame – your former partner, another person
• sadness and depression.

The good news is that one of the last stages of grief is healing; the acceptance that the relationship is over and with that, the ability to move on. 

In your post separation relationship with the other person, particularly if you are trying to resolve disputes over property and/or children, it’s good to realise that you might be at different stages  - you have moved on but the other partner is still angry or sad, or vice versa. 

Start taking action and getting information. Separation can be completely overwhelming. Where do you start to unravel plans for the future and finances? What should happen with arrangements for children and who gets what financially? I guarantee you, the sooner you get some advice and assistance to work out a plan of action, the better you will feel. Clients tell me time and again how much better they feel even after the first appointment because they can see some light at the end. 

Put a routine in place for children. All the parents out there know that children thrive on stability and routine. The best post separation parenting arrangements are those that are ideally negotiated between yourselves, that are consistent, and provide for children to have time with both parents (if that is what is best for them). This does not necessarily mean an equal time arrangement particularly for children under school age. 

It will get better! At some point, these disputes will get sorted one way or the other. How quickly and affordably is up to you and the other person. If you are both committed to sorting this all out so you can both move on, it can happen quite quickly and without the expense of court proceedings.

Welcome to the crazy world of life after separation.

You need to sort out your property, but how?

This Blog is the first in a series of blogs designed to assist you to navigate the murky, perhaps shark infested waters of property division and end up safe at shore, with your deal done.

I want you to end up with an outcome that is fair and one that ideally, is negotiated with your former partner, and agreed between you. Separated people who cannot agree how to divide their property and need the court to decide, will end up spending a great deal of money in legal fees. You have better things to do with your hard-earned money, then spend it on legal fees. Particularly if you have children.

We start with some legal stuff that will help you to understand the wording more easily and tell you what the law says has to be done or might be done if you end up before a judge. You need to know this. You need to pick your battles sometimes and not waste time and money arguing about something you are just not going to get.

We will tell you about the 5-step process that we use to advise clients about what is a fair outcome.

Later blogs step you through the process and what you need to do, to get to an agreed outcome (and then we tell you what to do with that outcome, once you have it.) I've broken down the process into 9 easy to understand steps.

Here’s a very ‘lawyery’ disclaimer- this is information only, not advice and you can’t rely upon it as advice. Use this information as a guide, to point you in the right direction and to help you understand the legal language and principles. I cannot stress enough, to obtain legal advice that is specific to you, as you go along. Here are some notes as well:

When I talk about “relationship” and “partner” – it means both defacto (never married) and married couples; and includes same sex relationships.

These blogs will talk about “what the court will do” as that is our benchmark, that is how we advise you. Please note, I will encourage you to think of going to court as a last resort, so just because we talk about “court” doesn’t mean you should make an application to the court. UNLESS!! It is an application for consent orders.

An application for consent orders is a form that is filed with the court once people have agreed how to divide their property and/ or what arrangements they want in place for their children. As the name of the form suggests, you are asking the court to make orders by consent, that you have both agreed to. Even though you file the application in the court you don't actually go to court. Once the application is filed a registrar of the court will give you a date when he or she will consider your application and on that date, you will be informed whether the application has been granted or not. If the application is not granted the court will “requisition” it. The court won't dismiss your application straight away, you will be given information by the court as to why the registrar was concerned about your application and you will be given an opportunity to rectify the issue may have arisen.

There's further information about this in the blog entitled “filing your application for consent orders.

Are you ready!