At all times, the best interests of the child are the paramount consideration of the Family Law Courts and it is expected that they will be the paramount consideration of parents.
In 2006, changes were made to the Family Law Act 1975 which were intended to assist parents of children to focus on the children's best interests following separation.
The following terminology now appears in the legislation:
"Equal shared parental responsibility"
It is presumed to be in the best interest of a child that parents consult with each other on major long term issues. Parents who have an order for shared parental responsibility must consult with each other on major long term issues such as education, religion, health, the child's name and changes to the child's living arrangement which impact on the child's time with another parent.
This term replaces the concept of residence/custody.
"Have communication with/spend time with"
This replaces the concept of contact.
If an order has been made for equal shared parental responsibility the court then has an obligation to consider whether it is in the child's best interests to spend equal time with each of his or her parents.
"Substantial and significant time"
If the court decides that it is not in the child's best interest to spend equal time with both parents it must then consider whether it is in the child's best interest to spend significant and substantial time with both parents;
Under the legislation, a child is taken to spend substantial and significant time with a parent only if the time the child spends with the parent
- includes both days that fall on weekends and holidays, and days that do not fall on weekends or holidays; and
- allows the parent to be involved in the child's daily routine and occasions and events that are of particular significance to the child; and
- allows the child to be involved in occasions and events that are of special significance to the parent.
"Independent Children's Lawyer" (ICL)
An Independent Children's Lawyer may be appointed by a court if it appears to the court that the children's best interests in the court proceedings ought to be represented by a lawyer.
An Independent Children's Lawyer acts in the best interests of the child, but not necessarily on the child's instructions. If an ICL is appointed you may be asked by Legal Aid Queensland to contribute to their costs.
An agreement which sets out unenforceable parenting arrangements.
Care Arrangements for Children after Separation
In order to ascertain what is in a child's best interests, the court is guided by the objects of the legislation and Section 60CC of the Family Law Act 1975 (Cth) which sets out what the court must consider in determining what is in a child's best interests.
The objects of the legislation are to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to protect children from physical or psychological harm, to ensure the children receive adequate and proper parenting and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The principles underlining the objectives are that;-
- Children have a right to know and be cared for by both parents;
- Children have a right to spend time on a regular basis with both parents and other significant people;
- Parents should jointly share duties and responsibilities concerning their children;
- Parents should agree about the future parenting of their children; and
- Children have a right to enjoy their culture.
Where parents are able to reach an agreement in relation to where their children live and the time which the children spend with each parent, then they have the option of having that reflected in a parenting plan or a Consent Order.
A parenting plan can be developed by the parents between themselves or with the assistance of a family counsellor. A parenting plan is not registered with the Family Law Courts, unlike a Consent Order, and a parenting plan itself is not enforceable in court.
A Consent Order on the other hand is an agreement between the parties, which is reflected in writing and which is registered with the Family Law Courts. It is a binding and enforceable legal document.
In either case, is it is expected that parents will regard the best interests of their children as the paramount consideration when negotiating care arrangements after separation. In doing so, parents are expected to act on the basis that their child's best interests will be met by the child having a meaningful relationship with both parents, and that the parents will protect them from physical or psychological harm and/or from being subjected to, or exposed to, abuse, neglect or family violence.
From 7 June 2012, new provisions were inserted into the Family Law Act 1975 (Cth) which changed the way family violence in dealt with in child-related disputes under the legislation. Where there are risks of abuse, neglect or family violence through a child having a meaningful relationship with both parents, then parents, like the court, are required to give greater weight to this consideration than to the benefit of the children having a meaningful relationship with both parents.
The matters that may be dealt with in a parenting plan or Consent Orders include;-
- the person or persons with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child;
- if two or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
- the communication a child is to have with another person or other persons;
- maintenance of a child;
- the process to be used for resolving disputes about the terms or operation of the plan;
- the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan; and
- any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
If parents are unable to reach an agreement in relation to what is in the best interests of the children, they are required by law to attend for family dispute resolution and to obtain a certificate from a family dispute resolution practitioner before they can file proceedings in the Family Law Courts. That certificate will state whether or not each parent has made a genuine effort to resolve the issues between them. There are exceptions to the requirement of obtaining a certificate where there are violence allegations, abuse or issues of urgency.
The Federal Government has established Family Relationship Centres throughout Australia which are intended to assist parents to reach agreements for, during and after relationships.
There is a Family Relationship Centre in Cairns that can provide advice and assistance to parents who are experiencing difficulties in complying with a Court Order or parenting plan and you should contact Relationships Australia to make an appointment. If the mediation process is unsuccessful you then need to obtain a Family Dispute Resolution Certificate from your counsellor to enable you to file proceedings in the Family Law Courts.
The legislation requires the court to consider the conduct of the parents in child matters. The changes introduced to the legislation on 7 June 2012 have removed the obligation on the court to consider the extent to which a parent has failed to facilitate a child spending time with or communicating with the other parent. The Courts are still required to consider the willingness of each parent to facilitate and encourage a relationship between the child and the other parent, and to make findings in relation to inappropriate conduct of parents, or matters where vexatious or malicious allegations have been made.