The Family Law Approach to Child Custody Arrangements » Pearsons Lawyers

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The Family Law Approach to Child Custody Arrangements

Have you ever wondered what your rights are as a Mother or a Father? If you have, then maybe it is time to ask yourself a different question…

Separation is never an easy road for families. Particularly for the children of the relationship who are often caught in the crossfire and unfortunately endure the effects of separation in both the short and long terms.

When it comes to dealing with parental rights, the Family Court does not consider the rights of the parents to guide their decisions about children’s matters, instead consideration is given to the rights of the children or better known as the “best interest’s principle.”

WHAT IS THE “BEST INTERESTS PRINCIPLE?”

According to section 60B(1) of the Family Law Act 1975 Cth (“the Act”), the best interests of the children are met by four main objectives:

  1. ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
  2. protecting children from physical or psychological harm and 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.

The four main objectives shows that children in fact have several rights, including the following:

  1. a right to know both parents;
  2. a right to be looked after by both parents;
  3. a right to spend time with both parents and other significant people in their lives (such as their grandparents); and
  4. a right to enjoy their culture.

HOW DO WE DETERMINE THE “BEST INTERESTS” OF THE CHILDREN?

When the Family Court is faced with making decisions in relation to children (for example, who the children should live with), they are guided by the bests interests principle and in particular, two primary considerations being:

  1. the benefit to the children of having a meaningful relationship with both parents; and
  2. the need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

It is important to be aware that the need to protect the children from harm takes precedence over the children having a meaningful relationship with both parents. In fact, the Courts may reduce a parent’s time with their children or in extreme cases of violence, eliminate any contact altogether.

According to section 60CC(3) of the Act, the Family Courts are also guided by ancillary factors, some which include:

  1. any views expressed by the children (this will depend on their level of maturity and understanding);
  2. the nature of the children’s relationship with each parent;
  3. the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
  4. the practical difficulty and expense of the children spending time with and communicating with a parent; and
  5. any family violence involving the children or a member of the children’s family.

The Family Court has a very wide discretion to take any other fact or circumstance that they believe are relevant in determining what arrangements should be made to ensure that the children’s best interests are protected.

EQUAL SHARED PARENTAL RESPONSIBILITY

The Act does not seek to favour one parent over the other. In fact, the Family Courts have a duty to first apply a presumption that it is in the best interests of children for both parents to have equal shared parental responsibility for their children.

This presumption means that parents are to work together when deciding major long term decisions for the children, some of which include:

  1. the child’s education (both current and future);
  2. the child’s religious and cultural upbringing;
  3. the child’s health;
  4. the child’s name; and
  5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

There are of course exceptions to the rule where there is evidence of abuse of the child or family violence and it is at the Court’s discretion to weigh up all the circumstances when applying the presumption of equal shared parental responsibility.

In the event that the Family Court considers it appropriate to apply the presumption of equal shared parental responsibility, the next task for the Court is to determine the amount of time each parent should spend with their children.

The Court can decide that both parents spend equal time with their children or spend “substantial and significant time” with their children. It will depend on what arrangement is reasonably practicable in the circumstances to ensure that the best interests of the children are the paramount consideration.

PARENTING PLAN VS PARENTING ORDER

The best way to begin the process of mediating matters relating to children is to engage in the Family Dispute Resolution (“FDR”) process. The FDR Practitioner can assist the parties with developing a parenting plan or can provide a certificate to show that FDR was attempted but was unsuccessful. A certificate issued by an FDR Practitioner will then permit you to apply to the Court for parenting Orders. If you would like more information about the FDR process, please see our article titled “How Does A Divorce Mediation Benefit Me?”

When you have reached an agreement with your partner on the children’s arrangements, you can either formalise your agreement by way of a parenting plan or a parenting order. The main difference between the two documents is their enforceability. Parenting plans are not enforceable as they simply document an agreement made between the parties. On the contrary, parenting orders are enforceable as this document requires the Courts input. The preferred route to ensure that the children’s arrangement are upheld is to apply for parenting orders.

OTHER RESOURCES

We recommend the following brochures on the Family Court website if you require further information on custody arrangements and parental responsibility:

  1. “Parenting orders – obligations, consequences and who can help.”
  2. “Recovery orders.”
  3. “Parental conflict and its effect on children.”

NEED LEGAL ADVICE?

If you would like legal advice on your family law matter, you are welcome to book a free first appointment with our Solicitors by contacting our head office on (03) 9306 0044.