In the child's,
best interests.
We believe that strong advocacy is holistic: caring for you and your child(ren). Although the best interests of the child is the paramount consideration under the Family Law Act 1975, we believe this is also the best approach.
If you have children, then a decision will need to be made as to the parenting arrangements that will be most suitable to the child(ren) and practical for the parents. These arrangements will typically include consideration of birthday arrangements, school holidays and where the child(ren) will do changeover with the other parent.
A final parenting agreement requires both parents to consider the childs' physical and emotional wellbeing, their health, financial limitations, educational opportunities, moral and cultural considerations and religious interests.
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The primary considerations in determining the best interests of the child(ren) are: (1) the benefit of the child(ren) having a meaningful relationship with both parents, and (2) the need to protect children from physical and psychological harm. This includes children witnessing family violence, being neglected, or being physically or psychologically hurt
The Court needs to also give additional consideration to the following factors under the Family Law Act 1975:
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Child(ren)’s views—the court will look at how much children understand and how mature they are;
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The relationship child(ren) have with their parents & other significant people, including grandparents, siblings & other relatives;
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How much each parent has participated in making decisions about major long-term issues affecting the child(ren) including:
(a) How much time each parent has spent and communicated with the child(ren) during and after the relationship; and
(b) Whether each parent has fulfilled or failed to fulfil their parental obligations (eg paying child support on time). -
The likely effect of any change to where child(ren) have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare;
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The practical difficulty and expense of child(ren) seeing each parent, and whether that difficulty will affect their right to have a relationship with each parent; this includes spending time with or communicating with each parent;
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How much each parent and any other significant person can provide for the child(ren)'s physical, emotional & intellectual needs;
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The child(ren)’s and each parent’s maturity, background (including culture and traditions), sex and lifestyle, & anything else about the child(ren) the Court thinks is important;
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Aboriginal or Torres Strait Islander child(ren)’s right to enjoy their culture (including with others of that culture);
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Each parent’s attitude to the responsibilities of being a parent & towards their child(ren) in general;
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Any family violence involving the child(ren) or their family member;
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Any interim, final, non-contested or police issued family violence orders that include child(ren) or their family member;
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Whether the orders the sought will reduce the risk of further court proceedings; and
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Any other considerations the Court thinks important.
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If the Court decides to give you equal shared parental responsibility (with the other parent), they must also consider whether it’s practical and in the child(ren)’s best interests to spend equal time, or substantial and significant time with each parent.
Substantial and significant time includes child(ren) spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the child(ren)’s daily routine.
This consideration includes spending time with children at special events such as birthdays and school concerts.
When deciding whether an arrangement is practical, the Court will consider (1) how equal or substantial and significant time will affect the child(ren); (2) how far apart the people involved live; (3) each parent’s ability to share care and communicate with one another and (4) any other consideration the Court sees as relevant.
The final agreement made must be in writing, dated and signed by both parents and can outline who makes decisions about what, the times each child spends with each parent and how the parties will communicate.
This agreement can also outline what will happen on special ocassions, such as Christmas, Easter and birthdays before they occur to avoid stress and ambiguity in the moment.
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When making parenting orders, the Court will presume it to be in the child(ren)’s best interests for both parents to have equal shared parental responsibility, unless there has been child abuse or family violence by a parent or a person who lives with the parent.
Equal shared parental responsibility means both parents share decision making for major long-term issues about the children.
This decision making ability includes making decisions about the children’s:
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education
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religious and cultural upbringing
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health
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name
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living arrangements.
It does not include day-to-day decisions about the children’s care, such as what the children eat or wear. Such a requirement would be far too onerous! If the court decides both parents have equal shared parental responsibility, then they must seek to reach an agreement about major long-term decisions together, whether that be by mediation or the assistance of a family law solicitor.
Equal shared parental responsibility isn’t the same as equal parenting time.
Sole parental responsibility may be given to you if the court determines this to be in the best interests of the child(ren). If you have been given sole parental responsibility, it means that you are not required to consult with the other parent in relation to the considerations outlined above.
03
What about Family Violence?
You must inform the Court if you are aware that a child or another member of the child’s family is under the care of, or being investigated by a state or territory welfare authority (such as Child Protection).
If the Court finds there has been family violence or child abuse, it may seek further evidence and will make orders to protect the children.
If the Court considers child(ren) may be at risk in one parent’s care, it can order them to spend time or communicate with that parent under certain conditions or under another person’s supervision. The person who supervises can be another relative or someone at a contact service. A contact service will supervise child(ren) being dropped off and picked up or provide supervised time with a parent.
In situations where each person says different things about the family violence and the Court can’t decide who is telling the truth, it may order one person’s time with the children to be supervised.
A parenting order will override (replace) a family violence order made by your local Magistrates Court if the two orders say different things. The family law Courts can also order state and territory agencies (such as a child welfare agency) to give information to the Court regarding previous family violence, child abuse or allegations of these.
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What is an Independent Children's Lawyer (ICL)?
Section 68L of the Family Law Act 1975 allows the Court to appoint an ICL to represent a child’s best interests during parenting proceedings.
The Court can appoint an ICL on its own initiative if it believes one is necessary. An application to appoint the ICL can also be made by the child, an organisation concerned with the child’s welfare, or by any other person.
An ICL will typically be appointed if the case involves:
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Allegations of child abuse or neglect (physical, psychological or sexual);
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Allegations of family violence;
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High levels of conflict between parents;
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Significant health issues (physical or psychological) affecting the child, a parent, or someone with significant contact with the child;
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Significant religious or cultural differences affecting the child;
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Allegedly anti-social conduct by one or more parents, which impacts the child’s welfare;
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Proposals to separate siblings; or
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Proposals by one parent to move somewhere with the child, which would effectively deny the other parent access.
The ICL can make a recommendation to the Court about the child(ren)’s best interests. The ICL’s primary duty is to provide an independent opinion about which decisions or arrangements will be in the child’s best interests. If the ICL believes there is a particular course of action that will best promote the child’s interests, their submissions to the Court must suggest that the Court adopt those actions.
05
What is a Child Impact Report/ Family Report?
Early in your matter, a Child Impact Report may be prepared by a Court Children’s Expert, for the Court following a short meeting with each parent and possibly the child(ren). This report assists the Court by clearly identifying the issues in dispute, the impact the dispute is having on the childr(en) and making recommendations in relation to the progress of the matter.
If your matter continues in the Court, then the Court may order that a Family Report be prepared. Family Reports are usually prepared in the lead up to a final hearing and provide a more thorough exploration into the parenting issues in dispute, the history of the relationships between the children and the parties and provides long term recommendations in relation to the matter.
A Family Report is prepared by a Family Consultant. Family Consultants are qualified social workers or psychologists, with skill and experience in working with children and families. If a Family Consultant is appointed by the Court for an internal assessment there is no additional cost to either party.
If a matter is urgent or requires specialist input, parties may request a private professional to complete a family assessment and provide the Court with a report which may be admitted to the Court as evidence. A private assessment report is paid for by the parties. Private assessments can be prepared by specialist social workers, psychologists and sometimes psychiatrists in private practice. These individuals are also experienced in dealing with children, families and the court processes involved in family law matters.
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Where can I find good parenting resources?
If you are looking for assistance in making the transition to coparenting after your relationship has broken down, the Parenting After Separation (PAS) program provides parents with key information and strategies to assist you and your child(ren) to successfully adjust to separation and/or associated conflict.
This is a Court recognised program that can be used to demonstrate that you are being proactive in learning how to parent your children well.
A typical PAS program will address topics such as the following:
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Coming to terms with separation
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Managing your relationship with the other parent
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Strategies to resolve conflict and improve communication with the other parent
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Keeping conflict away from kids
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Learning about your children’s ages, stages & responses to separation
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Understanding the key elements of family law
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Developing self care strategies and learning how to look after yourself
There are many free resources on the internet that could assist you with parenting, including links to the following: Family Relationships, Legal Aid or those recommended by the FCFCOA.
Alternately, there are many support service organisations that you could reach out to for assistance in this area including CatholicCare, Anglicare or Good Shepherd.