Separation can be one of the most harrowing of life experiences, especially when there are children involved. According to the Australian Bureau of Statistics in 2015, 47.5% of divorces involved children. This is a significant number and it is likely that many families are confused, troubled, and unsure of the legal process to resolve these matter after separation. A lot of people talk about “their rights” but ultimately, only the children have rights under the Family Law Act, with both the Federal Circuit Court and the Family Court having the discretion to make whatever parenting orders that they find to be in the best interests of the child.
The Court will, where possible and appropriate, facilitate meaningful relationships between the child and both parents. Pursuant to the Family Law Act 1975, both parents will be entitled to share parental responsibility equally as the Court applies a presumption that it is in the best interests of the child. There are some circumstances that would rebut that presumption.
Shared Parental Responsibility
Shared parental responsibility means that both parents will share in making important decisions about long-term parenting matters including education, major health issues, religious or cultural practices, who the children spend time or communicate with. Both parents are required to make such decisions jointly and should consult each other and work together for the benefit of their child.
Shared Parental Time
Should equal shared parental responsibility apply, the Court must consider the child spending equal time with each parent if it is in their best interests. Otherwise significant and substantial time (midweek, weekend and holiday periods) would be considered by the Court.
What Does the Court Consider?
The Courts considers many factors that are set out in Section 60CC of the Family Law Act to determine the best interests of the child. Those factors include two primary considerations being:-
- The benefit of the child having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Additionally, the Court takes into consideration further factors including, but not limited to:-
- Views expressed by the child, weighed by the Court based on factors such as age and
- The child’s relationship with each parent and with other relatives such as grandparents and other extended family members;
- The likely effect of any change in circumstances of the child, including separation from either of their parents, other children, or any other person with whom the child has been living.
- The practical difficulty and expense of the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
- The capacity of the parents to provide for the needs of the child including emotional and intellectual needs.
- The maturity, sex/gender, lifestyle and background of the child and of each parent.
- The attitude to the child’s and the responsibilities of parenthood demonstrated by each parent.
- Any family violence involving the child and any member of their family including Family Violence Orders if there is one in existence.
Keeping it Out of Court
If agreement is able to be reached between the parents relating to the care arrangements for the child, that agreement can be formalized by way of a Consent Order.
Obviously, if you are able to reach an agreement that is a far better way of resolving matters in dispute with a former partner than having to participate in a Court process where there are significant delays and considerable expense.
The majority of parenting agreements are reached at Family Dispute Resolution (FDR) (compulsory mediation prior to either party filing any Application with the Court). FDR can occur either through organisations such as Relationships Australia and the Family Relationship Centre or via a private FDR Practitioner where you are able to have the assistance of your legal adviser attend with you to negotiate the issues in dispute with your former partner.
In certain circumstances other significant people in your child’s life may be able to seek and obtain Orders relating to specific time they spend with your child.
Ultimately almost every family’s situation is different. There are significant issues in today’s community that may impact upon your Family Law matter such as Domestic Violence, the increase dependency on drugs and alcohol. Contact us if you wish to speak with one of our Family Lawyers regarding your own circumstances.
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