How are children’s matters determined?
In determining matters relating to children the Family Law Act 1975 (Cth) requires that the parties attempt to resolve their disputes utilising dispute resolution services.
The overriding principles considered by the Family Court with respect to parenting arrangements are that the best interests of the child are paramount, and that:
- children should have the benefit of a meaningful involvement with both parents in their lives;
- children should be protected from physical and psychological harm and harm resulting from being subjected to family violence;
- children should receive parenting conducive to them achieving their full potential;
- unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents and other people significant in their lives;
- parents should co-operate in determining what is best for the children rather than fighting in Court.
It is important to understand that shared parental responsibility does not mean that the child or children will spend equal time with each parent. In this respect, various practical and other factors are considered such as the ages of the children and their ability to cope with change, the existence of and their relationship with other siblings, the parents’ respective work commitments, schooling and location.
Shared parental responsibility however does involve joint and equal responsibility and authority for the child or children and input with respect to long-term decisions such as their health, welfare and education.
Parenting Plans
A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children. Parenting plans are not legally enforceable however are taken into account if one of the parties subsequently applies to the Court for a parenting order to vary the parenting plan. Parenting plans may be made before or after divorcing.
Consent Orders – Parenting
A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend Court, however they have the same force as an order made after a Court hearing.
The parents, grandparent or other person concerned with the welfare of a child or children may make a parenting order.
Going to Court
If agreement cannot be reached regarding parenting issues it may be necessary to apply to Court for the appropriate orders.
A Family Dispute Resolution Certificate must be filed with an application to the Court to determine parenting matters, other than consent orders. This means that the parties must attend compulsory dispute resolution with an accredited independent consultant before proceeding. Exceptions apply in urgent circumstances, if there has been family violence or abuse, or if the application is related to a contravention of a previous order.
If the matter goes to Court, there will be a range of factors to consider in determining the future care and responsibility for the children. In addition to the principles already outlined, the Court will consider the extent to which a parent has or has not fulfilled their responsibility towards a child or embraced the opportunity to do so.
In some circumstances the Court will appoint an Independent Children’s Lawyer (ICL) or order that a Family Report be prepared by a psychiatrist or psychologist. An ICL is usually appointed in complex matters or matters involving allegations of abuse, neglect, family violence or mental health issues. The purpose of a Family Report is to address matters from an independent perspective and to propose arrangements that focus on the best interests and welfare of the child.
The best interests of the child are also reflected in the manner in which proceedings are conducted. The impact that proceedings may have on a child is always considered and cooperation between the parents is fostered with as little formality during proceedings as possible.
We appreciate that no two families are alike and that parenting matters can be fraught with emotion and conflict. This is evident in the discretion available to the Court in determining orders that are in the best interests of the child.
We recommend that advice be obtained as soon as your relationship breaks down to ensure that you are aware of your rights and responsibilities. Our early involvement and expertise will assist you in navigating this complex area of law during a stressful time.
