When children are involved in a separating family, the paramount consideration must be that of the children’s best interest.
We know each family and their members are individual and the advice provided is an individual as the family members and circumstances at the time. We will provide you with that individual advice and offer you creative options in relation to issues such as:
Equal shared parental responsibility
The Family Law Act provides that there is a presumption that both parents will equally share the parental responsibility for the major long term care, welfare, and development decisions for the children.
This presumption is rebuttable only in certain circumstances where there is family violence or the child is in need of protection from psychological or physical harm.
Equal shared parental responsibility and arrangements for the times the children will live with and spend time with each parent (formally known as custody and access or residence and contact)
The term “equal shared parental responsibility” often gives rise to confusion where a party may assume that they are entitled to equal living time with the children. If the presumption of equal shared parental responsibility applies, the Court must firstly give consideration whether equal time is in the children’s best interest, otherwise the Court will give determination to a living arrangement whereby the children will live with one parent and spend substantial and significant time with the other parent.
Each family is unique and the structure of such arrangement will depend on a number of factors as set out in the Family Law Act, such as the age of the children and the wishes of the children.
Parenting Plans and Consent Orders
Where parents reach agreement in relation to the children’s living arrangements, parents can finalise the agreement by way of either a Parenting Plan or Consent Orders.
A Parenting Plan is a more informal document which is signed by both parties and dated. It is prudent for this document to be drafted by a lawyer to ensure that all parenting matters are taken into account, and that the agreement reflects both parties’ intentions.
A Consent Order is a document which sets out the rights and obligations of each parent, defining the time the children will go between the two households, and other matters such as communication and other specific issues. The document, once sealed by the Family Court of Australia will be binding, and thereafter both parties are obligated to comply with the terms of the Orders, or if unable to comply with the terms of the Orders, then the party needs to bring an application to vary the existing Orders.
Relocation and Abduction
In some circumstances, a parent removes the children from the care of the other parent without the knowledge or consent of the other parent. The Family Court is able to make Orders for the relocation and recovery of children on an urgent basis.
In certain circumstances, parents may wish to travel overseas with their children. If a dispute arises in relation to the destination, the release of a passport, or the obtaining of a passport for a child then a parent is able to seek the assistance of the Court for Orders enabling the travel to take place. Similarly, if a parent already has the passport and is indicating they may be removing the children from the Commonwealth of Australia without the consent of the other parent, then the parent can bring an urgent application for the removal of the passport from the parent who has the passport in their possession, and restraining that parent from removing the children from the Commonwealth of Australia. The DFAT website (www.dfat.gov.au) also has useful information for urgent matters.
In most cases, parents either reach a private agreement for the payment of Child Support, or the parties work with the Child Support Agency where an assessment is made in relation to how much Child Support is payable by one parent to the other.
The Child Support Agency website (www.csa.com.au ) has a calculator where certain factors can be entered into to give you an estimate in relation to how much Child Support is payable in your circumstances.
In exceptional circumstances, the Court is able to make an Order overriding that assessment and provide for other Orders of Child Support.
The less adversarial trial system
This is recently new to the Family Court and whilst the process is still binding and serious, this less formal process enables parties to speak openly with the Trial Judge with evidence being given orally at each session as determined necessary by the Trial Judge.
Child Protection Matters
In circumstances where children are at risk of psychological or physical harm, the Department of Child Safety may be called to assist. This may result in the removal of the children from a parent or parents where they are placed in foster care or in the care of another suitable family member.
These situations place enormous stress on the children and the parents, and we are able to work with the Department of Child Safety to negotiate on your behalf, or alternatively act in the Magistrates Court for the best interests of the child.
The children’s right to a meaningful relationship with other family and non family members
We have often been called on to act for grandparents and other family members where they have been excluded from a child’s life.
Also, a person who has played a significant role in a child’s life, whilst not a family member, also has rights through the Family Court process to continue a meaningful relationship with the child.