Separation and breakdown of a relationship is always difficult for any family. Separating with children can be a very hard and emotional process for everyone involved including children. When parties to a relationship separate, they may need to attend mediation this is called Family Dispute Resolution. A Family Dispute Resolution attempts to negotiate an agreement, or begin proceedings in the Court if parties can not come to an agreement. Our professional legal team will help you navigate your way through the family law system.

Children and Family Law

The Court holds a responsibility to always ensure parenting matters are dealt by:

Applying the presumption that the “child’s best interest is paramount” and is the most important consideration

Identifying that each parent has responsibilities towards their child or children. The responsibilities are generally shared equally, unless there are reasonable and serious grounds to believe that a parent of the child has engaged in family violence or abused the child.

What is the best interest of the child?

The best interests of the child means that at all times, the most important consideration of the Court is the child or children in the proceedings, not the parties to the proceedings. The child or children’s interest are paramount in the proceedings. The legislation spells it out clearly. When determining what a child’s best interest are, the Court considers the things set out in section 60CC of the Family Law Act 1975. These include primary and secondary considerations.

Primary considerations

· Each child has the right to have a meaningful relationship with both parents.

· The need to protect the child from any harm such as physical or psychological harm, from exposure to abuse, family violence or neglect.

Secondary considerations

· Views expressed by the child and any factors the Court finds relevant to the weight it should give to the child’s views. This means the child’s understanding, maturity level and cognitive understanding are taken into consideration.

· The child’s relationship with each of the parents and any other persons. This includes any grandparent, guardian, carer or other relative the child has a relationship with.- to communicate with the child when he or she is not in their care.

· The role/s each parent/s has fulfilled, or failed to fulfill, the obligations to maintain the child’s best interest.

· The role/s each parent/s has fulfilled, or failed to fulfill, the obligations to maintain the child’s best interest.

· The effects of any change in the child’s circumstances, this includes separation from either of the parents or separation from any other child or person with whom the child has been living with.

· The capacity of each parents, and grandparent or guardian and their ability to cater for the needs of the child including emotional and intellectual needs.

· The age, maturity, gender, lifestyle and background of the child and their parents.

· The ability to parent responsibly.

· Any family or domestic violence involving the child or a member of the family.

· Any other fact or circumstances that the Court thinks is relevant

 

 

Parental Responsibility

Parental responsibility is defined by all the duties, powers, responsibilities and authority that a parent has in relation to their child. It’s a legal term, set out in section 61B of the Family Law Act 1975, and applies to all parents of a child under the age of 18 years – whether biological or adoptive.

This responsibility remains in place, and does not change, if parents separate, divorce, re-partner or remarry, they are still bound by the Family Law Act 1975.

A person with parental responsibility is responsible for a child’s care, safety, welfare and development of the child.

Any parent who has a child under the age of 18 years is assumed to have parental responsibility.

Equal shared parental responsibility

Equal shared parental responsibility means both parents of a child under the age of 18 years old have an active role in the decision making process on serious, important and long-term issues that affect the child.

Equal shared parental responsibility does not necessarily mean equal time care arrangements. Until court orders are made by the Court or by consent, it is presumed that both parents have equal shared parental responsibility.

If the Court finds there is a presumption of equal shared parental responsibility between the parents, where there are no circumstances of family violence or child abuse then the Court must consider making an Order for the children to spend equal time with each parent.

An equal time arrangement is one that is:

· practicable

· in the best interests of the child.

However, if the Court does not find that an equal time arrangement is reasonably practicable, then it must consider making an Order for the child to spend substantial and significant time with each parent.

 

 

Does the presumption of equal shared parental responsibility always apply?

When a child is in the care of either parent, the presumption of equal shared parental responsibility can not apply to decisions about short-term matters and everyday activities for obvious reasons and the difficulty surrounding it. Short term decisions can include but not limited to; what the child will eat, wear, and what time they go to bed. These decisions for obvious reasons do not have to be made jointly with the other parent.

The presumption also does not apply if there are reasonable grounds to believe one parent has abused, been violent, or shown threatening behaviour towards the child, or any other child or family member in either parent’s family.

 

 

What happens if there is no equal shared parental responsibility?

An Order for sole parental responsibility can be made and applied for to the Family Court. This Order will only be made in the event the presumption of equal shared parental responsibility is not in the best interests of the child or children.

A Parenting Order may include time that the child lives with or spends time with a parent. If a child is considered to be at risk or exposed to family violence or child abuse then a court may make an order for one parent or non-parent carer, such as grandparents or other family members to have only supervised time with the child

If an Order for sole parental responsibility is sought, the Court may make one of the following orders:

· That the child live with one parent only which could also mean the child spends only supervised time with the other parent if there are concerning reasons.

· Specific terms about the time a parent spends, or communicates, with the child.

· That one parent has sole responsibility for all, or part, of the major long-term decisions of the child without having to consult the other parent (or non-parent carer)

If any parent, or non-parent carer, are concerned for the welfare and care of the child/ren they can make an application to the Court for a sole parental responsibility Order, or to vary existing Parentings Orders.

If such an application is made for a Court to make a decision about this matter, the person applying for the Order must provide evidence to satisfy the Court that the other parent is not fit to care for the child and that equal shared parental responsibility is not in the best interests of the child.

The evidence used in Court may include police or medical reports, psychology assessments, or other relevant witness statements. The Court may also consider evidence about the mental and physical health of each parent.

 

 

What is equal time?

An equal time arrangement is where the child has their time split with each parent.

Equal time arrangements is usually worked out on a fortnightly basis. An equal time Order might mean a “week about” arrangement, which is where the child spends one week with one parent and then the next week with the other parent. Care might also occur on a different fortnightly routine that suits the parents, provided the child is ultimately spending equal time with each parent.

 

 

What is “substantial and significant time”?

If a child/ren live primarily with one parent, they may still spend substantial and significant time with the other parent by spending time with both parents during the week, weekends, school holidays and on special occasions including but not limited to birthdays, Father’s day and Mother’s day.

This arrangement allows both parents to be involved in the child’s daily life as well as sharing in special and other significant events.

 

What is “reasonably practicable”?

When a Court considers whether to make an Order for equal time, or substantial and significant time, it must consider whether it is “reasonably practicable” to do so. Working out what is reasonably practicable involves considering nut not limited to the following:

· The impact that the arrangement would have on the child/ren.

· The distance between each parent’s house from one another

· The distance of the parents place of residence to the child/ren school or child care.

· The capacity of each parent to implement the arrangements (for example, can you easily communicate with each other and resolve difficulties that might arise in implementing the parenting arrangement?)