Freedom Law

GRANDPARENTS AND GRANDCHILDREN

We get lots of enquiries from grandparents who are not getting to see their grandchildren.

This happens often when a parent (usually the grandparents child) is not spending time with their own children (the grandparents grandchildren). This may be because a parent is deceased, not interested in spending time with their own children, or a court has ordered that a parent not spend time with their children. The common factor is that the other parent opposes the grandparents spending time with the children.

Grandparents do not have any special rights. It is the grandchildren’s right to have a relationship and spend time with their grandparents if this is consistent with their best interests and they are protected from harm.

Unless grandparents take action and seek orders that the other parent make the grandchildren available to spend regular time and communication with them, the grandchildren will likely miss out on important relationships and part of their sense of personal history of that side of their family.

If you have any questions as a grandparent seeking time and communication with grandchildren, please contact us at Freedom law.

What is an Independent Children’s Lawyer?

An Independent Children’s Lawyer is a lawyer appointed by the family law courts. This usually occurs in cases where the court feels there is a need for children to be separately represented to their parents. This maybe because of high conflict between the parents, strong allegations of abuse or unmanaged mental health issues, alienation of children from one of their parents, or if there are strong cultural or ethnical differences between the parents.

The role of an Independent Children’s Lawyer is not to do whatever the children want. It is to investigate and consider, as an independent third party rather than as a parent, what is best for the children.

The cost of the Independent Children’s Lawyer is born by the parents if they meet a certain means test. If a parent is legally aided, it is unlikely they will have to contribute to the cost of a Independent Children’s Lawyer.

Some Independent Children’s Lawyers meet with the children and speak with them. Some do not. It depends upon the individual Independent Children’s Lawyer, and often the age of the children.

Where an Independent Children’s Lawyer is appointed, they will usually arrange things like a Family Report, drug testing and any other necessary actions.

If you would like more information about an Independent Children’s Lawyer, please contact us at Freedom Law.

Counselling in Family Law

Best practice amongst family lawyers is to recommend that clients seek counselling.

This is because relationship breakdown hurts, whether you are the one who calls “time” on the relationship, or not. Clients going through relationship breakdown need more than just family law legal support.

Getting counselling in family law is a lot easier than it once was. You can visit your GP and get a Mental Health Plan and referral to a psychologist so that Medicare covers much of the psychologist fee and you need only pay the “gap” between the Medicare scheduled fee and the psychologist’s actual fee.

It has become more “socially acceptable” to seek counselling. The stigma that you must be “crazy” if you are seeking psychological help is virtually non-existent.

Counselling is helpful in getting you through the family law experience. It helps you manage how you feel when having to read or hear hurtful things that the other party may write or say.

If you need a recommendation for a psychologist, please call us at Freedom Law.

https://www.freedomlaw.com.au/

Finances following relationship breakdown

There is no doubt that generally, both parties are worse of financially following a relationship breakdown.

This is because the old adage “its cheaper lives as two than as one” is the practical reality. Both parties have to accept the reality that neither of them will enjoy the same standard of living that they enjoyed while they were together.

The lower income earner in the relationship is often marginally better off in a capital sense as a result of a property settlement than the higher income earner. However, the higher income earner usually recovers this margin from their higher income within 2-3 years.

The purpose of the Family Law Act is to minimise the impact on finances, and standards of living, following relationship breakdown.

If this can be achieved on a just and equitable basis by agreement, this is a great outcome for both parties. If no agreement can be reached, a family law court will create such an outcome.

If you would like more information, please contact us at Freedom Law for your free initial consultation for all new clients.

Passports and Watch List

Nixon & Nixon [2015] FamCA 887 (1 October 2015)

Last Updated: 28 October 2015

FAMILY COURT OF AUSTRALIA

NIXON & NIXON
[2015] FamCA 887

FAMILY LAW – Interim decision – pending parenting proceedings re-listed – mother’s application for passports granted – father’s application to have children placed on the watch list dismissed

APPLICANT:
Ms Nixon
RESPONDENT:
Mr Nixon
INTERVENOR:
INDEPENDENT CHILDREN’S LAWYER:
Ms Smith
FILE NUMBER:
MLC
2061
of
2009
DATE DELIVERED:
1 October 2015
PLACE DELIVERED:
Melbourne
PLACE HEARD:
Melbourne
JUDGMENT OF:
Bennett J
HEARING DATE:
1 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:
In Person
SOLICITOR FOR THE APPLICANT:
COUNSEL FOR THE RESPONDENT:
In Person
SOLICITOR FOR THE RESPONDENT:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER
Victoria Legal Aid
ORDERS

IT IS ORDERED THAT:

  1. I grant leave to the husband to file his Response to an Application in a Case dated 30 September 2015 and his affidavit in support sworn or affirmed on 30 September 2015.
  2. That the mother be permitted to apply for an Australian Passport for each of the children of the marriage N born … 2000, S born … 2001 and I born … 2005 notwithstanding that the father of the children has not signed the passport application forms.
  3. Immediately upon receipt by the mother of the passport(s), the mother attend to the following:-
    1. To make three copies of the endorsed pages of each passport and send a copy to the father and the independent children’s lawyer; and
    2. To send the passport, or passports to the Registry Manager of this Registry of the Court by pre-paid post to be held for safekeeping.
  4. Until further order, the Registry Manager of this Registry of the Court hold the passports safely pending further order of the Court subject only to the operation of paragraphs 5 and 6 hereof.
  5. The mother be and is hereby entitled and authorised to do all acts and things necessary to enable the child N born … 2000 (“N”) to participate in the exchange tour to Europe from 3 April 2016 to 11 May 2016.
  6. For the purpose of participation by N in the said tour, the Registry Manager of this Registry of the Court cause N’s passport to be posted to the mother, or at the direction of the mother, by not later than Monday 21 March 2016 and the child N be permitted to leave Australia for that purpose without the permission of the respondent father.
  7. Otherwise, the Application in a Case of the wife filed on 15 August 2015 and the Response of the husband thereto filed on 1 October 2015 be dismissed and, for the avoidance of doubt, the father’s application to have the children placed on the watch list is not granted.
  8. The further hearing of the pending children’s proceedings, which are part-heard, be set down before me to commence at 10.00 am on 18 January 2016 and thereafter be listed on 25, 27 and 28 January 2016 at 10.00 am.
  9. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

AND IT IS NOTED that the application of the father for orders against the Australian Securities and Investments Commission, the Australian Taxation Office and the Australian Federal Police is dismissed pursuant to Section 118 of the Family Law Act 1975.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2061 of 2009

MS NIXON

Applicant

And

MR NIXON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

  1. This matter comes before me on an application in a case filed by the mother on 29 September 2015 seeking, in essence, that passports issue for the children N (15 years old) and S (14 years old) to enable them to travel on international school exchange programs. N is to travel in April and May of 2016 and S, it is anticipated by the mother, would travel in 2017.
  2. The husband, by a response in respect of which I have given leave to be filed today, appears to oppose the order and seeks an order that the children be placed on the watch list to prevent their exit out of Australia; similarly, that the mother be placed on the watch list. Further other orders, if I could call them that, are sought by the father in the response and they refer to the Australian Securities and Investments Commission, the Australian Taxation Office and the Australian Federal Police being requested to investigate various people including the wife and a number of legal practitioners for unspecified offences in relation to a number of pieces of legislation. He also seeks that the Australian Central Authority be joined as a party to this matter. The application for further other orders were not pressed by the father today, is not founded on any jurisdiction which I recognise and will, accordingly be dismissed. I am satisfied that the further other orders sought by the father are vexatious proceedings within the meaning of s 118 of the Act and pursuant to that power dismiss that part of the application.
  3. What remains are proceedings which are confined by the parties to the issues of passports for the girls and consequential orders to allow the older girls to participate in overseas school tours. I will have regard to the interests of each of the each individual girl as the paramount consideration. The additional considerations set out in s 60CC(3) of the Act are not of great relevance over and above me being satisfied (as I am) on the evidence of the mother and the independent children’s lawyer that the girls want to participate in the tours and that they will not be missing out on any time with the father or time at school in order to do so.
  4. Turning to the issue of passports for the two older children, it seems to me that a sensible course is to empower the mother to make application for passports for all three children. There is only one child whose travel dates are imminent and that is N who has been accepted into a school program to go to Europe in 2016. I have read the affidavit material submitted by both of the parties. I have had the benefit of hearing from the independent children’s lawyer as to her conclusion that passports should issue for all three children and, in relation to N, that the mother be entitled to proceed with N’s application and participation in the school program for which she has been accepted.
  5. The reasons why the mother seeks the passports are sound. The reasons why the father opposes the passports appear to me to relate to unresolved financial issues that he wishes to agitate but which are not relevant to my considerations about whether passports ought to issue for the children. For instance, he contends that the mother has undisclosed funds overseas. He submits that it’s reasonable for the court to infer that the assets to which the mother is entitled overseas are significant. He submits that it is reasonable for the court to infer that the mother has had difficulty in accessing those assets from within Australia and that she may have to present herself in person in order to access the assets. The father says that there is a real and genuine prospect that if all three children were permitted to travel overseas they would not return. I am unable, as a matter of logic or commonsense, to draw any of the inferences that the husband invites me to draw. It is not anyone’s proposal and nor do I grant permission for all three children to be removed from Australia at this time.
  6. I am satisfied that it is in the best interests of the children for the mother to be able to apply for passports in a timely and convenient way if she chooses to do so. Alternatively, she can apply for a passport for each child as and when the need arises. The father makes a secondary application and that is that the children’s names be placed on the watch list to prevent their exit from Australia. That is a reasonably common order under the legislation but the frequency with which it is used does not in any way lessen the fact that the court should only make orders when it is deemed necessary to do so. I am not persuaded by anything that the father has submitted or by the evidence that I have heard in this matter to date that there is an appreciable risk that the mother will attempt to remove the children otherwise than by agreement with the father or the permission of the court for her to do so.
  7. The next matter to which I turn my attention is to the conclusion of the pending child-related proceedings. They have limped along for what seems an eternity. The matter has been set down for hearing and allocated days which could not be used because the husband has been in ill health. The husband says that his ill health has been referable to one virus and two bacterial infections which necessitated his admission to hospital for five days but he says that he is in reasonable health now. To the extent that he is fatigued, he should make sure that he rests up before he comes back to court on the next occasion.
  8. I have allocated some hearing dates to this matter. It is my sincere hope that we can finalise it within those hearing days. This matter has reached the stage where the further prolongation of the case is a matter which I think could impact adversely on the interests of the children and that is something that I have to have regard to pursuant to Division 12A of Part VII of the Act and do so.