It is a child’s right to have quality time with both parents unless there is a very
good reason not to. Put simply, that is how we see it at Murdoch Lawyers. There
is a lot of confusion about custody, guardianship, access, residence and contact
but these terms have now been largely abolished by amendments to the Family Law
Act and replaced with the concepts of:
• “Lives with” Orders - i.e. where the child lives and with whom;
• “Spends time with” and “communicates with” Orders - i.e. arrangements for the
child and the parent with whom the child does not normally live to spend time with
and communicate with the child whether in person, over the telephone, letter, email
or by computer; and
• “Special issues” - i.e. any particular matter which requires specific mention.
For example, sometimes parents want to specify particular arrangements regarding
a child’s education, medical treatment or any other of the myriad issues relating
to a child’s upbringing and welfare. Orders can be made in relation to any aspect
of the care, welfare or development of the child or any other aspect of parental
responsibility for a child.
Parental responsibility
In the absence of a Court Order, each parent has equal shared parental responsibility
for the child. Obviously if the parents are separated the practical effect of that
will be reduced somewhat as the parent with whom the child lives will automatically
assume responsibility for a lot of the day to day issues such as deciding on the
child’s bedtime and so on. However, in the absence of an Order to the contrary,
equal shared parental responsibility is retained by both parents, meaning that decisions
on major long term issues should not be made without consulting the other parent
first. Major long term issues include education, religious and cultural upbringing,
health and even choice of name.
Formalising parenting arrangements
Sometimes a parent will seek to formalise or clarify arrangements relating to the
child. This may come about because of a dispute between the parents as to where
the child will live or the amount of time the child will spend with the other parent.
Of course, the majority of parents work out their own arrangements relating to the
children and the Family Law Act now encourages all parents to try to resolve children’s
issues without the need for Court proceedings. We take the view that unless there
is a good reason to make Orders then don’t, as they get in the way of common sense
discussions and variations to the normal living arrangements for children.
Matters relating to the child are probably best worked out by the parents as they
are the people who are going to have to live with the arrangement and make it work.
If the parents cannot resolve any issues, usually the first port of call will be
a Family Dispute Resolution Practitioner.
Matters relating to a child sometimes involve not only the parents but also the
grandparents, other relatives or people who have acted as foster parents. The Family
Law Act recognises that these people may be integrally involved in the children’s
lives and, indeed, the Act makes specific reference to the rights of grandparents
to seek orders relating to a child.
Parenting Plans and Consent Orders
In the event that parents reach agreement about these issues (whether by their own
efforts or with the assistance of a Counsellor, Mediator or Dispute Resolution Practitioner)
they can have that agreement written out in the form of a Parenting Plan or Consent
Orders.
A Parenting Plan is a document which need only be a written, dated and signed document
freely entered (free from threat, duress or coercion) between the parties detailing
parenting arrangements for the children.
If the parties wish to formalise their agreement by Court Orders, they can make
an Application for Consent Orders. Subject to approval by the Court, the agreement
between the parties will then be made an Order of the Court and either party can
utilise the Court for enforcement of the Order.
It is important to be aware that in most circumstances a later Parenting Plan supersedes
Consent Orders.
Court proceedings
In the event that the parents are unable to reach agreement, they may file an application
with the Court. Generally, the matter will go to a conference where, if it is unable
to be resolved, directions will be given for the preparation of the matter for a
Court hearing and an approximate date will usually be given for the hearing. In
urgent and deserving matters the Court will make interim Orders usually based on
affidavit evidence and submissions made to the judicial officer hearing the matter.
Not surprisingly, the Court makes Orders that are in the best interests of the children.
Family Reports
Often at issue is the relationship of the child with a particular person, or what
one party claims are the wishes of the child as to whom the child wishes to live.
If the matter is to go to a hearing, an Order is often made for the parties to attend
with a clinical psychologist for the purpose of the preparation of a Family Report.
The parents, the child and any other significant person as decided by the report
writer are usually asked to attend interviews and a detailed written report is prepared.
That report is released to the parties prior to the matter going into Court and
is often used by them and their legal advisers as a basis upon which to negotiate
a settlement. If the matter proceeds to a hearing, the report is used to assist
the Judge in dealing with issues such as the child’s wishes.
Independent Children’s Lawyer
In difficult matters, such as those where there is particular bitterness between
the parents, where there is a suggestion the children should be separated from each
other, where there is an allegation of child abuse, or where there is a cultural
difference between the parents (for example because of them having different ethnic
backgrounds), an Independent Children’s Lawyer can be appointed by the Court to
look after the child’s best interests.
Best interests of the child
In deciding what Orders to make, the Court must consider the best interests of the
child as the paramount consideration. In deciding what is in the child's best interests,
the Court considers the matters listed in Section 60CC of the Family Law Act 1975.
The Court generally takes the view, that unless there is evidence to the contrary,
it is in the child’s best interests to have a relationship with both parents and
that is the view of all at Murdoch Lawyers. We are not interested in acting for
people who use the children as pawns for financial gain or causing their ex partner
grief and pain.
WHERE TO NOW?
If you would like to speak with an expert to discuss your family law issue, please
call us on (07) 3007 9898 or send us an email at
enquiry@murdochs.com.au