Court Orders: How To Be A Responsible Shared Parent of Your Children

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05 Jul

Court Orders: How To Be A Responsible Shared Parent of Your Children

Where the children should live and how much time they should spend with the other parent or other significant adults in their lives are now subject to the Family Law Act.  This came into effect in 2006.

The principals in the legislation are summarised as follows:

“The law will take the view that parenting is a responsibility which should be shared and, in most cases, parents will need to consult and agree on the major of issues affecting their children.”

“Where both parents share responsibility, consideration will also be given to the children spending equal or at least substantial time with both parents providing that this is practical and not contrary to the best interests of the child.”

LEGISLATIVE CHANGES

The changes to the legislation were designed to support and promote shared parenting and to encourage people to reach agreement about the parenting of children after separation or consent orders are put in place. Changes made were to encourage parents to take responsibility for resolving disputes themselves and not in an adversarial manner.

Family Relationships Centres where parties are able to mediate matters relating to the parenting of their children were established in the Brisbane area. There are a number of Family Relationship Centres in Brisbane. When determining parenting matters, the parties must first attend a mediation to try and resolve parenting issues before filing proceedings in the Family Court unless there are urgent matters requiring attention or where there are serious welfare matters regarding children. In such cases, Courts may hear applications in regard to the parenting of children without the parties attending on mediation. Mediation can take place in organisations such as Relationships Australia. There will be fees associated with this.  The mediator will issue a section 60 I certificate confirming that mediation had been appointed giving details of the mediation.  This certificate must be filed with the Court when proceedings are instituted unless there is some urgency regarding the children.  A Court will not hear a parenting application without a certificate being filed with the Court.

These principles relate to all children under the age of 18 years, that is, prior to children becoming adults, whether the parties are married or unmarried – notwithstanding Binding Financial Agreements.

The overriding principal of the Court in parenting matters is that the best interests of the children are paramount. This principal overrides the wishes and desires of the parents. The decision of the Court after all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, is based on the best interests of the child’s welfare.

WHAT ARE THE RELEVANT PROVISIONS OF THE FAMILY LAW ACT?

Section 60B of the Family Law Act states that the best interests of children are met by;

  1. ensuring that children have the benefit of both their parents, having a meaningful involvement in their lives, to the extent that it is consistent with the best interests of the child;
  2. protecting the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence;
  3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
  4. ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) of the Family Law Act states that except when it is or would be contrary to the child’s best interest;

  1. children have a right to know and be cared for by both their parents;
  2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents or other relatives);
  3. parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
  4. parents should agree about the future parenting of their children; and
  5. children have a right to enjoy their culture.’

In regard to the children having a right to enjoy their culture the rights of Aboriginal and Torres Strait Island children to access, explore and appreciate their particular culture is clearly, and distinctly, set out in the principles of the Family Law Act.

These principles clearly apply to Aboriginal or Torres Strait Island children. They do not extend to other cultures although the Court may take this into account.

Section 64B(2) of the Family Law Act sets out particulars of parenting Orders that the Court can make. The section sets out the following provisions;

  1. the persons with whom a child should live;
  2. the time a child is to spend with another person;
  3. the allocation of parental responsibility for a child;
  4. the form of consultations to be had between persons who share responsibility; and
  5. the communication a child is to have with another person.

The family law legislation provides that the parents of a child have a shared parental responsibility. That is that parents share a shared parental responsibility in making decisions about major long-term issues affecting their children. A parent cannot unilaterally make a decision in regard to such long-term issues without the consent and consultation with the other parent. A major long-term issue in regard to a child is something that could be related to the care, welfare and development of the child and could include but would not be limited to the child’s:

  • name, health and education (both current and future);
  • religious and cultural upbringing; and
  • changes to the child’s living arrangements that may make are significantly more difficult for the child to spend time with either parent.

However, day to day parenting of a child does not normally fall within the definition of shared parental responsibility. Parents are not obliged to consult each other on issues that are not major long-term issues. This means that the parent with whom the child is spending time will usually not need to consult with the other parent about the normal day-to-day decisions regarding the care of that child.

However, unilaterally enrolling a child in a sporting or other activity which would affect the other parent’s time with the child may be considered a shared parental responsibility in which case the consent of the other parent should first be obtained.

Decisions regarding the schooling and residence of the child come within shared parental responsibility.  Unilateral decisions by one parent cannot be made in such instances.  The other parent must be consulted.

If a Court decides that the parents have shared parental responsibility for their child, the Court must consider whether the child spending equal time with the parents is in the child’s best interest and whether it is reasonably practicable.  If the Court believes so then the Court must consider making an Order for the child to spend equal time with their parents. If equal time is not practicable and not in the child’s best interests, the Court then considers whether the child should spend substantial and significant time with the other parent.

However, the overriding principle of what’s in the child’s best interests must always apply when making decisions in regard to shared parental responsibility and the parties spending equal time with the child or significant time with the child.

A FAMILY COURT TRIAL

The majority of matters proceeding to a trial in the Family Court relate to children’s issues, The Family Law Act sets out the following guidelines when considering parenting issues:

  • any views expressed by the child and any factors (depending on the child’s maturity and level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
  • the nature of the relationship of the child with:
    (a) each of the child’s parents; and
    (b) other persons (including any grandparent or another relative of the child);
  • the willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent;
  • the likely effect on any child in the child’s circumstances including the likely effect of any separation from;
    (a) either of his or her parents; or
    (b)any other child or person (including any grandparent or relative of the child) with whom he or she has been living;
  • the difficulty and expense of a child spending time with 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:
    (a) each of the child’s parents;
    (b) any other person (including any grandparent or another relative of the child); and
  • to provide for the needs of the child, including emotional and intellectual needs;
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child the Court thinks are relevant;
  • if the child is an aboriginal child or Torres Strait Island child;
  • the attitude of the child, and to the responsibilities of parenthood, demonstrated by the child’s parents;
  • any family violence involving the child or a member of the child’s family;
  • any family violence Order that applies to the child or the member of the child’s family if;
    (a) the Order is a Final Order; or
    (b) the making of the Order was contested by a person;
  • whether it would be preferable to make the Orders that would least likely to lead to the institution of further proceedings in relation to the child; and
  • Any other factor or circumstances that the Court thinks is relevant.

The Court will also look at a parent’s involvement in the past parenting of the child and whether that parent has shown interest in the parenting and development of the child.

The legislation does consider other persons apart from the parents when making Orders in regard to children. Persons who have a significant interest in a child’s life such as grandparents or relatives also have significance in relation to the rights of the child. The Courts will consider applications by such persons to be involved in a child’s life. Such interests are normally subordinate to the parents’ rights to the children.

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