The process at Kate Austin Family Law – FAQ’s
Fixed fees for a parenting matter? Even if I’m in court?
Yes. We’ve had a good look around, and cannot find another firm who is willing to put themselves out there and give a fixed price for parenting matters, whether they’re a negotiated settlement or court proceedings. We’ve also talked to a lot of people and read a lot of public opinion, and it’s pretty clear that the general public are increasingly coming to the view that lawyers should be able to tell them what this stuff is going to cost. We believe we’re one of the few family law firms around who are willing to give you, the client, not just an idea about what your matter will cost, or a range, but a precise figure. Click on our get a quote page and we’ll prove it to you.
Why won’t lawyers fix fee parenting matters?
Some matters settle in three months. Some matters are strenuously contested and take three years to resolve. Some matters involve extensive and countless allegations. Some matters just need a constructive lawyer on each side to help the parties get to an agreement themselves. So lawyers will say it’s impossible to say how much your legal fees will be, because they don’t know how much work will be involved.
Why are you any different?
The truth is, we don’t know how complicated your matter is either. We don’t know how long it’ll take to resolve itself. But we want to provide a different style of service, and one which gives you certainty about how much it will cost because we know that this is increasingly what clients expect. If your matter settles early, you’ll pay less, and if it becomes contested, it will cost more. But there is certainty in the figures that we give to you. In return, we ask that you work with us within reasonable parametres. Things change and sometimes things will blow out. We accept that this will be the case from time to time, but we think it’s worth it so that you know you have certainty with your fees, and not as though you’re throwing money down an endless, bottomless pit with no knowledge of when it might end.
What if my matter settles at some stage? Do I have to pay the entire fee?
You will see if you click on our get a quote page that our fixed fees are broken into stages. The idea is that you pay the amount that is stated for each stage and you don’t pay anything further until that stage has been completed. If your matter settles early on, you’re only paying for that stage.
Children’s Matters – General FAQ’S
What is a parenting case?
There are lots of terms that are used interchangeably by the court and the general public to describe parenting cases. From children’s cases, to parenting disputes, to custody matters, essentially they are all the same thing. Cases where parents are in dispute in relation to the future care arrangements for their kids are commonly called parenting cases, or child custody cases. If the matter goes to court, the job of the judge is to make orders for the children which the judge believes will be in the child or children’s “best interests”.
“Best Interests” – What is that all about anyway?
When courts are making a decision on parenting arrangements, the main consideration of the court is to ensure that the proposed arrangements are in the best interests of the children.
The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it will look at what is best for the children in each case.
This presumption of equal shared parental responsibility will not apply if there has been child abuse or violence by a parent or a person who lives with the parent (including abuse of any child within these families).
How is ‘best interests’ worked out?
The Family Law Act sets out a number of matters that the court looks at in deciding what’s in a child’s best interests.
The two most important considerations are:
- Protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt
- The benefit of children having a meaningful relationship with both parents.
If these two considerations are in conflict with each other the priority is the protection of the children from physical and emotional harm
Other matters that the court must consider include:
- Any views of the children, balanced against their ability to express them. Children do not have to express their views if they don’t want to
- The type of relationship children have with their parents.
- The extent to which each parent has been involved (or not) with decisions about major long-term issues about the children.
- How much time each parent has spent with and communicated with the children.
- Whether each parent has supported the children financially or failed to do so, for example paying child support on time.
- The likely effect of any change to where children have been living or staying.
- The practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent.
- How much each parent and any other person can provide for the children’s physical, emotional and intellectual needs
- The maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent, and anything else about the children that the court thinks is important.
- The right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture).
- Any family violence involving the children or a member of their family.
- Any contested or final family violence order that includes the children or a member of the children’s family.
- Whether the orders that the parties have applied for will lessen the risk of further court proceedings.
- Any other considerations the court thinks are important.
What does ‘equal shared parental responsibility’ mean?
The term ‘equal shared parental responsibility’ does not mean equal time, which is what a lot of people think It refers to decision making. In most cases, the court will make an order that the parents together have equal shared parental responsibility for their kids and this means that together, they make decisions about important long term matters, such as the children’s health, education, their religion, and their name. There is a presumption that applies in the Family Court that the parents should share responsibility for long terms decisions pertaining to their kids, but this can be rebutted in some instances.
Do I have to attend mediation before going to court?
Ordinarily, the Rules provide that parents have to attempt mediation before they’re allowed to make a court application. This mediation is known as ‘family dispute resolution’. Organisations such as Relationships Australia and Legal Aid organise family dispute resolution, or you can engage a private practitioner to conduct family dispute resolution with you and your former partner. There are exceptions to the rule that you have to attend mediation, aid in particular, if there is or has been family violence, then you are not required to participate. If family dispute resolution doesn’t resolve your dispute, you receive what is called a ‘Section 60I Certificate’ and this enables you to make an application to the court.
Do our children have to spend equal time with each of us?
The Family Law Act says that a judge has to consider whether an equal time arrangement is in a child or children’s best interests. In a lot of instances, judges will say that if parties cannot communicate effectively with one another then their case is not one which is best suited to an equal time arrangement. Many separating couples agree to this arrangement by themselves however, either informally, or by way of consent orders. Or sometimes, they’ll come up with something that’s close, like an arrangement that sees kids spending six nights with one parent and eight with the other. If the judge doesn’t think that an equal time arrangement is best for the children, he or she then has an obligation to consider whether orders that see each parent having substantial and significant time is in the children’s best interests instead. Substantial and significant time includes times on weekends, and time on week days and time which otherwise enables both parents to be involved in the children’s day to day lives and extracurricular activities.
Wishes of the children
Children cannot give evidence in court about what they want. They do however get a say and their evidence is put before the court in three different ways:-
- Via information from affidavits of other people, such as their parents. Usually this evidence isn’t allowed, however it is in family law proceedings.
- Via an independent children’s lawyer, who is a lawyer appointed by the court to act in the children’s best interests; or
- Via a family report. A court can order the preparation of a family report, which is prepared by a counsellor or psychologist or psychiatrist to assist the court in determining the best outcome for the children. The children are able to speak to the family report writer about their wishes and this information can the be put before the court via the family report prepared by the family report writer.