“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.” The changes to the legislation qld were designed to support and promote shared parenting and to encourage people to reach an agreement about parenting children after separation. 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 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.
Australia’s 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.
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.
Section 60B of the Family Law Act states that the best interests of children are met by;
Section 60B(2) of the Family Law Act states that except when it is or would be contrary to the child’s best interest;
In regard to the children having a right to enjoy their culture the rights of Aboriginal and Torres Straight Island children to access, explore and appreciate their particular culture is clearly, and distinctly, set out in the principles of the Family Law Act in Australia.
These principles clearly apply to Aboriginal or Torres Straight 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;
Family law 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 of 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:
However, the 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 principal 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.
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:
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 NSW 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 significant 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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