Category: Justice

Separation can be a tricky period in a relationship that is difficult to navigate. Unless you know that you are planning to get divorced as an end goal, separation can mean a lot of different things for you, your ex-partner and your children from a short period to solve problems, to a complete break without a formal divorce, to a range of other things. But regardless of what separation means to you, there are a number of legal considerations that separated parents in Australia need to consider, which we will go over in this article.

It’s all About the Kids

First, before we get into some of the legal considerations, parents need to understand that all of these considerations need to come from the side of the kids. That means that kids have to be at the forefront of consideration for decisions and their well-being is important. So any decision, if it goes to the court, will have the kids’ best interests in mind when they make the decision. If you are making the decision privately or with a mediator, keep the children’s best interest in mind for all of them.

Meaningful Relationships are a Right

In Australia, children have a right to a meaningful relationship with their parents, unless there is a concern for safety. What “meaningful relationship” means is a relationship where the child has continued involvement that resembles the close connection they had prior to the split. This should be with both parents but it can also be with other caregivers. For instance, if one set of grandparents always babysit the kids while the parents are at work, this should be continued, even after a split.

Now that we’ve looked at those two points in regard to the kids, let’s look at other legal considerations that parents who are separating in Australia need to consider.

Equality in Parenting Responsibility

In Australia, parents who are separating need to consider that, legally, they both have the same level of parenting responsibility. In addition, this parenting responsibility comes with the same level of power, duty and authority over the children. That means that both need to have input into long term, or life changing, decisions being made for the children, regardless of whether you were married or are separating from a long term relationship.

One interesting point to make is that for decisions that are less life changing, such as moving out of the country, can be made independently. However, to help with the co-parenting relationship, Australian parents should set up communication to make decisions together.

Another point to make is that the courts can decide to remove parenting responsibility if it is in the best interests of the child.

Equal Responsibility Does Not Mean Equal Parenting Time

While parents may have equal responsibility, and everything that comes with that responsibility, unless determined by a judge, they do not have that equality when it comes to parenting time. In fact, unless parents agree without a judge, 50:50 time with the children is not always standard. This is very important to stress because, at one time, this was standard law in Australia; however, that is no longer the case.

Instead, courts are looking at the best interests of the child. If a 50:50 arrangement is not in the best interests of each individual child, then it will not be part of the court arrangement. Instead, a careful look will be taken in regard to the child’s needs, where they will have the best living arrangement and how the meaningful relationship can be nurtured regarding visitation time.

This can be quite overwhelming and parents can often disagree with what this looks like. There are a number of free guides that help you navigate a parenting order, which is one determined by the courts. However, it is always the best option for parents to make a visitation agreement together, being sure to have the children’s best interests, along with opportunity to nurture that meaningful relationship, at heart when you make your parenting agreement.

There is a Financial Duty to the Children

This was touched on already but Australian parents have a financial duty to support their children after the separation. This means that regardless of who the children live with, both parents have to financially support them. This can be done in a number of ways such as agreements between parents on shared expenses. Or there can be court ordered child support payments for the kids.

One thing that parents should understand is that in Australia, the Department of Human Services administers child support payments. They also have a number of resources to understand how much support should be given, and how parents can navigate the financial obligations that they have for their children.

Family Law is Gender Neutral

A final point that should be made about the legal system in Australia, when it comes to family law, is that it is gender neutral. This was determined in the Family Law Act 1975. With this law, there are no assumption in regard to gender of the parents or gender roles. What this means for parents who are separating is that traditional roles of parenting are not taken into consideration and the courts will look at relationships and the best interests of the children when determining the parent who will provide the primary care and residence.

This gender neutrality of the law enables dads to have as much say as moms and it enables either parent to hold the responsibility of primary caregiver. In the end, the courts all agree that the child thriving in a healthy and happy way is more important than traditional gender roles within parenting.

Understanding some of these legal considerations when you are separating assists in making sure that the separation is easier for both you and your children.  We know that separation can have a lot of negative impacts on children, especially when it is not an amicable separation but knowing the legal considerations can make the transition much easier for all of you.

In a perfect world, co-parenting, once through the more emotional and stressful moments of separation, would be free of disputes. Unfortunately, even with co-parenting relationships that are good, the occasional dispute can happen. And sometimes, those disputes are not able to be corrected without the help of the courts. 

In these instances, understanding how to navigate the UK family court system is important so that co-parenting disputes are worked through quickly and with limited effects on your children. For this reason, while we hope that 2houses would avoid these situations, we are here to give you some important understandings on navigating the UK family court system for any co-parenting disputes that can’t be mediated out of court.

Where Can Disputes Occur?

When you are dealing with co-parenting, there can be a number of disputes. Often, this occurs because of financials, or it could simply be around visitation or one parent moving. If you are the primary caregiver, you may feel that you have the right to make decisions without the input of your ex-partner; however, it should be noted that both parents have to make big decisions together.

And it is these big decisions that often create the higher risk of disputes needing the courts to make the final decision. So what are some disputes that occur_decisions both parents need to make?

• Large moves: If you are staying in the same city or neighbourhood, then moves are often expected and do not need joint agreement; however, if you are moving the child out of the city, county or country, then both parents have to agree to it.
• Changing Schools: As parents, you often decide on the education plan of your children from a young age. Once separated, that decision is still made by both parents and neither parent can change or select a school without the input and agreement of the other parent.
• Authorized Absences: It may not seem like an issue, but any absence from school that is authorised must be authorised by both parents. The school is legally obligated to have both parents sign off on an absence. Often, these don’t land in the family court system, unless there is a high number of absences only authorized by one parent.
• Living and Contact Arrangements: Once the co-parenting agreement is confirmed, this isn’t a dispute very often; however, occasionally, changes in school holidays can lead to disputes over these arrangements and further arbitration is necessary to overcome these disputes.
• Changing a Child’s Surname: This has to be agreed upon by both parents. At no time can only one person change the surname of the child.

There are many other reasons that you can end up in the UK family court system, but these are often some of the more frequent reasons. So now let’s look how to navigate through them. 

Understanding the Power of the Court

Before you head to filing an application to the court, you should decide on whether or not your case warrants court action, or can even be heard by the court. If it is something that is particularly minor, you and your ex-partner should look at mediation instead of going through the court. Even larger disputes can be done through mediation and are usually faster and less expensive than a court case is. For more tips on mediation in the UK, read our article on mediation. 

In the event that you cannot go through mediation to work through this dispute, make sure you understand what you are filing. A family lawyer can help you with this, but for a quick understanding, the family court can rule on the following:

• Child Arrangement Orders: Also known as CAO, this is the order of who the child resides with and what the visitation arrangement (also known as contact arrangement) is part of this order.
• Specific Issue Orders: This order, also known as an SIO, is used to give decision making permission to one parent so they can make medical decisions without joint permission or can make the decision to take the child out of the country.
• Prohibited Steps Order: A PSO is an order that is set if there are reasons why a parent should not have the ability to take action in regard to their relationship with their child. This has been seen in cases where one parent is worried another parent will leave the country with the child.

When a court makes these orders, they do so with the child’s best interests in mind. 

Filing an Arrangement With the Court

If you have reached the stage where mediation is not working, you can file an application to the family court to have a judge make the decision. When filing an arrangement, there are a few considerations that you should follow.

Consideration One: Use the Proper Form

Most applications for the UK family court is done on the C100 form. This can be downloaded from the gov.co.uk website. However, you can file right online now, or you can submit a paper form. It is important to note that Scotland and Northern Ireland has different steps to file an application so contact a lawyer to do so if you reside in those areas.

One thing to point out is that if there are allegations of domestic violence in your ex-relationship, you will need to file an additional form, which is the C1A form. 

Consideration Two: The Fees

Before you get ready to file, be ready to pay the fees. While the fees can change slightly, as of 2023, the fees to file a C100 form is £232.

Consideration Three: Notifying the Other Parent

Most orders will require a notification to the other parent that you are pursuing this dispute in the UK family court system. However, there are times when you can ask that the other parent is not notified. These are known as “without notice” applications and are usually limited to urgent cases with specific steps order or a prohibited steps order. They are only granted in exceptional circumstances but the other parent will need to be notified once an order is in place. 

In that instance, the order will only be enforced for a limited time until both cases are heard in full and then a final, more permanent order will be set. 

Consideration Number Four: Understand the Stages

Once you have filed your application, there are three, potentially four, stages that you will go through. These are:

1. FHDRA: The first hearing dispute resolution appointment, which is usually a very short hearing where the judge organizes the case.
2. DRA: The dispute resolution appointment is the preparation for the case where they hear key issues, the extent the issues can be resolved, filing statements of facts, witness arguments, and ensuring that everything complies with the practice direction 27A.
3. FFH: A fact finding hearing does not always happen but is often done during cases with domestic violence. Fact finding hearings considers the evidence around any allegations and the judge will decide if the allegations occurred or not. 
4. FH: The final hearing is where the judge will assess all of the evidence and make a final decision. Not all hearings will end with an order but most will.  

During the entire process, you and your ex-partner will be encouraged to settle the dispute on your own prior to the final hearing. 

Navigating the UK family court system can seem daunting but when you understand the process and understand what you can ask for in regard to court orders, you will find it much easier to navigate. Hopefully, you won’t have to go to the final hearing, but if you do, understanding the process will ensure you are more confident walking into court. 

O’Canada, where do we begin when it comes to Canadian parents, the law and divorce or separation.

First, it’s going to be okay. While it may seem like there are a million different things to consider and understand when you are separating with your partner and taking the steps to divorce, it is not as overwhelming as it originally is.

Second, Canada has a lot of protections for all parents during a divorce and when we are looking at same sex couples, more than two parents and so many other unique ways families are formed, Canada has made the effort to recognize all of those diverse family styles, which allows for Canadian parents to understand their own rights.

Third, we are here to help you understand your rights when it comes to Canadian law, which should take out both the guesswork as well as any confusion that you may have. So let’s dive in and look at those rights that you have as Canadian parents.

Canada’s a Huge Country; Does that Mean the Laws are all the Same?

The answer is a bit harder to answer. While there are many overlapping laws that are applied by federal court rulings, it is important to note that many provinces have their own laws and rules that you should be aware of for your individual place of residence. As this is a much more in-depth look, for the sake of this article, we will focus on more of the broad rights that affect all Canadian parents.

However, before we do, it should be noted that all provinces, as well as all territories, have child support guidelines as drawn out by the federal government with the exception of one—Alberta. That being said, there are some guidelines that are province based so how child support is calculated will depend on amendments provinces and territories have made to the child support guideline or if they are relying heavily on a province drafted guideline.

The New Divorce Act in Canada

On March 1, 2021, the divorce act was changed to reflect new shifts in language. This includes remove the terms custody and access and switching to parenting arrangements to remove the indication of ownership of children with the old terms. Not all provinces and territories have adopted the terminology for parenting arrangements but Canadian parents should expect this to happen Canada wide eventually.

Who is a Parent?

Under Canadian law, a parent is the mother and any other parents who are listed on the birth certificate or adoption papers. In Canada, with the exception of Alberta that still has it set at two, up to four individuals can be listed on a birth certificate; however, five or more can be added to a child’s birth certificate with a court order. These birth certificates are to reflect the ever changing dynamics of Canadian families to include same sex couples, donor parents who are involved with raising the child but may not be living with the child, or surrogate parents, etc.

It should be noted that in the case of three or more parents, there are usually parental agreements where donors and surrogates sign off on parental responsibility but are still on the birth certificate. In these events, they would not be part of the parenting arrangements as per their original contract and agreement.

The multi-parent birth certificates allow for same sex partners, and those using surrogates, to be included on the birth certificate whether they have a biological tie to the child or not.

In addition to biological parents, stepparents can apply for parenting arrangements in the event of separation or divorce. They can also be responsible for child support depending on the length of time they were in the child’s life and other conditions.

What is a Parenting Arrangement?

A parenting arrangement is a plan that you make with your partner, whether through mediation, on your own or with the court, in regard to the care of your children. With parenting arrangements, the same laws apply regardless of whether or not you and your ex partner were married or unmarried at any time in your relationship. That means that unmarried Canadian parents have the same rights as those who were married.

With the parenting arrangement, parents will agree on where the children will live, what the shared visitation will look like and who will be the primary caregiver. In addition to living and visitation arrangements, where the kids go to school will also be decided in the parenting arrangement.

Finally, both parents will agree on important decisions for the children such as education, medical care and religion. In parenting arrangements, if any of these things were to change, both parents need to reach an agreement on it that is reflective of the best interests of the child.

What are the Best Interests of the Child?

Although this article is looking at the rights of Canadian parents, one of the main takeaways is that the rights of the parents are secondary to the best interests of the child. For example, if a judge deems that contact with a parent would not be in the best interest of the child, that parent will not have contact.

With best interests, the following parameters are considered by the courts:

1. The child’s physical, psychological and emotional well-being is the primary concern of all courts.
2. The child’s safety and security are additional primary concerns.
3. There should be consideration and access for healthy relationships with each parent as well as siblings and extended family members such as grandparents as long as the primary concerns are met and contact will have benefits for the child’s well-being.
4. All arrangements should lead to stability for the child’s needs in regard to their age and development.
5. Care arrangements should be reflective of both current separation and any future shifts due to divorce.
6. In any parenting arrangement, culture, spiritual upbringing, heritage, and religion should be respected and included in the arrangement. This is especially important in families with mixed heritage and cultures.
7. Indigenous rights need to be a primary concern.

Basically, the child’s culture, heritage, age and development need to be considered so the child does not suffer any negative loses of those things during separation and divorce.

As parenting arrangements are for a healthy transition from one to two homes for the children, some rights of the parents may not be considered during this time. In the end, Canadian parents need to be aware of the laws for their individual province and should come to the parenting arrangement with the best interests of the child. If they do both of those things, they should not have too many obstacles when sorting out the best arrangements for your children, yourself and one that works for your ex partner as well