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When do children get to decide which parent they will live with?

July 4th, 2019

One common misconception that parents often have following separation is that their child will get to decide who they live with and how much time they spend with the other parent.

The living arrangements for children after separation is a decision to be made by both parents, not the children.  If parents cannot agree to the living arrangements for their children, they are required to attempt mediation to see if they can agree with the assistance of an independent third party.  If there is still not agreement after mediation, then ultimately either parent may need to commence court proceedings asking the court to decide on the arrangements for the children.

The next obvious question is—If children do not get to decide who they will live with, do they get a say in the decision at all?  The answer to this question will depend on the circumstances of the particular family.

For example, we are commonly now seeing that parents who agree to attend a mediation to discuss and try to reach an agreement on the arrangements for their children are adopting one of the two following practices to ensure their children also have a voice in the decision:

  1. Attend a child inclusive mediation.

Unlike the suggestion of the name, the children do not actually attend at the mediation with their parents.  Whilst mediations are run differently by different mediators, generally the mediator will spend time with the children prior to the mediation.  The mediator is trained to create a comfortable and safe environment for the children to share their views on the issues to be discussed at mediation.  Those views can then be brought into the mediation through the mediator.

  1. Obtain a family report prior to mediation

A family report is written by a family report writer, who is usually a social worker or psychologist.  The purpose of the report is to provide recommendations on what parenting arrangements are in the best interests of the children.  In making recommendations, the report writer gathers information through interviewing both parents and significant others, the children (if they are old enough) or observing the children with their parents (if they are not old enough to be interviewed).

A family report is often ordered by a court in parenting proceedings to assist the court in gathering evidence as to what arrangements are in the best interests of the children.  Increasingly however, parents are choosing to obtain a family report privately to assist them in making decisions for their children outside of the court process.

A family report is another way in which children can have their views heard by both parents and is an asset in a mediation. However, ultimately it is the parents or court who have the final say in the children’s care arrangements.

It should be noted that how much weight is given to the views of children will depend on the individual circumstances of the case, and in particular, the age of the children and their maturity.  Whilst children do not get to decide their own care arrangements, the more mature and older they are, the more weight that will usually be given to their views.

The recent High Court decision of Bondelmonte confirms that even children who are mature and approaching the age of 18 are not able to decide their care arrangements.  In that case, the children who were 15 and 17 at the time, were ordered by the court to live with their mother, despite both children expressing that they wanted to live with their father.

If you are going through a separation and would like to discuss your parenting matter, contact one of our family lawyers today on 4036 9700 to find out about our fixed fee initial consultations offered in both our Mareeba and Cairns offices.

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Family Law Judges are not mediators, or are they?

March 7th, 2019

In another surprising development in the ever-changing landscape of Australian family law, Judges in the Federal Circuit Court of Australia can now act in certain cases, as mediators.  “Judicial Mediations” as they are called, are an entirely new service now being provided by Judges of the Federal Circuit Court of Australia; Judges who, it is well-documented, are already overburdened by huge case loads.

The rules surrounding Judicial Mediations are set out in Practice Direction No. 1 of 2019 which commenced on 1 January 2019 and is available on the Federal Circuit Court website.

A brief summary of the main rules of Judicial Mediations is as follows:

  • a party to a case before the Federal Circuit Court may make an oral or written application for Judicial Mediation;
  • the “docket Judge” who the parties ordinarily appear before, determines, according to certain criteria, whether the case is suitable for Judicial Mediation;
  • in considering whether a matter is suitable the docket Judge will consider a list of suitable matters provided for in the practice direction; however he or she may determine that another matter not provided for in that list is still suitable;
  • suitable matters include:
    • those where both parties are legally represented;
    • those where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
    • property disputes;
    • parenting disputes where there is no  allegation of  serious risk and/or family violence;
    • appropriate child support matters;
    • compliance with orders for a prior unsuccessful private mediation; and
    • a risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
  • it is expected that all mediation alternatives (including private mediation with a family dispute resolution practitioner) will be exhausted prior to a Judicial Mediation;
  • if ordered, a new Judge will be appointed as the Judicial Mediator so the case is not mediated by the docket Judge or the trial Judge (who is usually one and the same);
  • significant preparation is required for Judicial Mediation, similar to that required for a trial; and
  • all parties and any legal representatives must attend the Judicial Mediation.

How frequently Judicial Mediations are ordered and how effective they are, remains to be seen.  It is hoped that this new service will not significantly increase the already large case loads being handled by Federal Circuit Court Judges, and in the process increase waiting times being experienced in the courts.

For more information about Judicial Mediations or any other family law issues, feel free to contact Julie Hodge, family lawyer & Senior Associate on 07 4036 9706.

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