One of the enquiries that many family lawyers get from their clients who have children and who have separated or divorced, concerns the rights and legalities of changing a child’s name. Most usually that will be to change their surname rather than their first name, although that does get raised occasionally.
Almost without exception enquiries to family lawyers about changing a child’s surname will come from the child’s mother, who, having changed her surname when she got married, wishes to either revert to her maiden name or it could be she is going to remarry and change her surname to that of her new spouse. It follows that the child’s mother may want her child’s surname to match hers for practical and emotional reasons.
Family Law And Shared Parental Responsibility
One of the core principles enshrined in current family law, and in particular the 1975 Family Law Act, is that of shared parental responsibility. It means that, even if a child lives primarily with one of their parents, their absent parent has as much say in their child’s well-being as the resident parent. As such, a child’s mother cannot make important decisions about the child, including what surname they use, independently and without discussion with the child’s father.
Whenever a couple divorces and there are children in that marriage, in most cases both parents will be awarded joint parental responsibility unless one parent and their family lawyer can show the family court that sole responsibility should be ordered.
In truth, it is rare for sole parental responsibility to be given, except where one of the parents is absent or not capable of having such responsibility, for example, if they are a serious drug user.
For most parents and children, it is joint parental responsibility which will apply and that will cover who the children live with, visitation, and also the obligation for both parents to discuss and agree on any and all of the major decisions that relate to a child’s upbringing and welfare.
One major problem with that scenario is when the parent with whom a child lives decides that they wish to relocate. When we say relocate that is not talking about a simple house move to another part of the city, but instead referring to a move to a completely different city or state.
Whenever a couple spilt, and there are children involved, even if the breakup is somewhat acrimonious, the welfare of those children must be paramount. As your divorce lawyer will tell you, a court can make a parenting order if the parents cannot agree, but there are ways to make parenting arrangements which do not always involve going to court.
The latter applies when there is a degree of civility between the parents, and they are able to agree to parent arrangements amicably. In this scenario, they simply agree to a parenting plan which they both commit to sticking to. Here there is no need to involve the court. but for this reason, this type of parenting plan is not legally enforceable.
The other way an agreement can be reached, and have greater legal status, is to apply to the court for a consent order. Here the agreement is reached between the two parents with regards to the children, but they give it legal status by applying to the court to formalise it.
In these circumstances, the court will not simply rubber-stamp it, even though an agreement has been reached. The court will also ensure that the agreement is appropriate, that the interests of the children are being met, and that the agreement is fair to both parties.
Top Lawyers can help you Negotiate a Fair Property Settlement
Although it is a genuinely stressful and daunting experience for many, there is no denying that divorce is an undeniable truth for many couples in modern day Australia. Seeking the services of reliable family lawyers like Family Lawyers Perth can go a long way in reducing the stress, time and money spent on divorce proceedings. Hostility, anger and resentment often tend to cloud your judgement and impair your decision-making ability.
The negative feelings and consequent lack of communication can make it difficult to agree on important matters including custody, division of property and assets as well as spousal support and so on. Such feelings of anger, resentment, fear, insecurity and rejection can be intensified if there has been a history of infidelity or violence etc. In such cases, choosing to represent your own case can prove to be a costly blunder and you may miss out on your rightful share. An experienced divorce lawyer can help you keep a clear head, uphold your rights and view your options objectively.
Surviving a divorce is a little like making it through a shipwreck – they’re often survivable, but it takes a little luck and some hard work to swim to shore. The following tips should help you navigate the shark infested waters as you head back to calmer seas.
Your Next Marriage
No, I’m not talking about who you date after the divorce is over, I’m talking about family lawyers. This is the person who will calm your nerves, hold your hand through rough times, stand up for you and your interests, defend you, and generally be your guiding light for months. You’ll also likely pay them a tidy sum of money so it’s absolutely critical you find a match for your budget and for your personality. It’s like a marriage.
How do you find such a kindred soul? Interview, interview, interview. If you’re stressed out because you’ve been served with papers, or you want to file for divorce right away, the tendency is to go with the first family lawyer you meet. Don’t do that. Remember, you have to find a match. Are you comfortable with them? Do you like their personality? Are you a person who needs a quick response to questions? Did the lawyer (or their assistant) quickly return your phone call or email? What do other people say about them (online reviews of lawyers actually exist and they’re extremely helpful).
Make a Decision (before you start)
There are many outcomes of divorce proceedings, and many reasons for filing for divorce. It’s important to understand two things: what are YOUR reasons for divorcing, and even more importantly, what do you WANT to happen.
It’s critical to make this decision up front for several reasons: first, if you can effectively communicate what you want to your attorney they can fight for that outcome. However, if your attorney thinks you want to divorce, but you really just want to eventually reconcile, you’re headed for a disaster.
Think about the details because they will matter. Do you want maintenance (that’s the modern word for ‘alimony’)? If so, how much? Is there property you want and feel entitled to? Make sure your family lawyer knows what that is quickly.
Under Australian law, The Family Court issues orders that govern arrangements made for children in the aftermath of divorce between the parents. Top family lawyers will explain that the primary objective of parenting orders is to ensure the welfare and well being of the child.
An individual is considered a child until the age of 18. Parenting orders usually involve child custody and equal share parenting directives whereby each parent will have an equal say in major issues impacting the child. Parenting orders are in place to ensure that parenting does not get adversely affected due to separation or divorce.
The issues covered in parenting orders could include:
According to experienced Australian lawyers, separation is a very specific phenomenon under Australian law of domestic relations, because it has a complex and transitory nature, particularly due to its evidentiary significance in a gradually deteriorating marriage. On the other hand, separation is imbued with prominent emotions at varying stages of grief. Thus, separation in Australia is frequently connected with the below stages of grief:
Regulation of separation under Australian statutory and case law
Australian courts substantially extended the statutory dimensions of separation under Australian law. Thus, in Fields & Smith, the court ruled that it was just and equitable to make an order for property settlement.[1] Also, the court verified the equality of contributions pre-separation by the parties and found that the assets of the parties did not alter post-separation due to the efforts of either party. In deciding the case, the court also took into consideration changes in the role of the wife as parent and homemaker post-separation and decided that the changes did not decrease her entitlement to an equal division of the property. In the final analysis, the court held that there should be equal distribution of the parties’ assets upon separation.
Cooperation can help reduce Legal Costs
Every divorce case is different and unique. Competent family lawyers can help resolve problems related to divorce proceedings. Some cases are easily settled while others take time and tend to become acrimonious. As a general rule of thumb, cooperation and collaboration play a crucial role in reducing legal costs and minimising valuable time spent haggling over funds, monies and property. The more time spent in court, the higher are the costs that both parties are likely to incur. Divorcing spouses must consider costs involved for filing various motions in Family Court, paying for mediation services as well for other legal services.
Unfortunately, many divorcing couples have a tendency to make decisions or communicate in a way that is driven by emotion and ego rather than calm rationale and logic. This sort of approach not only results in increased costs, stress and worry but also has an adverse effect on children (if any). Divorce can be an emotionally, legally and financially challenging experience and it’s a good idea to work towards resolution rather than litigation. Read on for a few important facts regrading the process of divorce in Australia:
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