It is a child’s right to have quality time
with both parents unless there is a very good reason not to
and that put simply 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 [see
counselling and dispute resolution page]
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 written out in the form of a Parenting
Plan or Consent Orders.
A Parenting Plan is a document which need only be written,
signed documents 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 issue an application to 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. No 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 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 on 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