Family Law Act: Parent and Child Matters
Under law, a child has the right to spend quality time with both parents. In some
instances, however, there will be good justification against this. At Robinson Gill,
we also strongly support this viewpoint.
In order to achieve this, Court Orders can be made, formalising how the child will
be cared for and many other parental responsibilities.
Court Orders & Terminology
In recent years, the Family Law Act has been changed. Many of the terms of old –
such as, custody, access and contact – have been removed from the Act. Instead,
a new set of phrases exist. These are used to describe the Court’s Orders and direct
such issues as living and communication arrangements. Some of the most important
Orders include:
- Spends time with. This Order directs how much time a child will spend with the parent they do not normally reside with.
- Communicates with. A directive that relates to communication between the child and the parent that the child does not normally reside with. It can involve various communication methods, including: email; phone; writing; and, computer.
- Lives with. An Order that states who the child will reside with and where.
Another important concept is that of “special issues”. These relate to any issues
that need to be brought up during the making of arrangements. They can encompass
a wide range of characteristics and include any matters related to the raising of
the child and their wellbeing (e.g. education or medical issues).
Absence of a Court Order: Parenting Arrangements
When there is no Court Order in place, responsibility for the child is evenly shared.
This also means that any decision making surrounding the child’s welfare or long
term care should be made by both parents. It is expected that, before such a decision
is put into action, the other parent is consulted. This might involve such decisions
surrounding a child’s religion, their culture and education. In instances where
the parents’ relationship breaks down and separation occurs, one will naturally
take more responsibility for the child’s daily routine. However, when it comes to
long term decisions and no Court Order is in place, both parents must be consulted
and come to agreement.
Formalisation or Seeking Clarification: Parenting Arrangements
There will be instances where both parents need to formalise or obtain clarification
on existing parenting arrangements.
A common reason parents seek to clarify or formalise an existing parenting arrangement
is due to disagreement (e.g. the period of time spent with each parent).
The Family Law Act encourages parents to work out any parenting matters and arrangements
prior to starting the Court process. This is the preferred route and, in many instances,
this is exactly what occurs.
At Robinson Gill, we also support this perspective, ensuring that Court Orders do
not prevent parents from working out what is best for the individual child. This
route typically provides the best parenting model – that is, one that is workable
and is centred on the child/children and the parents who are ultimately responsible
for carrying out the care giving. On the other hand, in some cases, there are significant
grounds to seek a Court Order.
Where a resolution can not be arrived at, it is typical to consult with a Family
Dispute Resolution Practitioner in the first instance.
Parenting Orders and Non-Parents
Not all Family Law matters relate to the parents themselves. In fact, the Family
Law Act acknowledges that other persons, besides the parents, might be fundamental
to the child’s care and upbringing. These might include other family members and
past foster carers. The Act, in particular, mentions grandparent rights in regards
to the care arrangements of a child.
Reaching Agreement: The Parenting Plan & Consent Order
When parents arrive at a mutual agreement in relation to the child/children and
parenting – regardless of if it was reached by themselves or with the help of a
resolution practitioner – it can be formalised in writing using a Parenting Plan
or a Consent Order. These two types of agreements differ in the following ways:
The Parenting Plan. This type of formal agreement includes
writing down the particulars of the parenting arrangement. The only stipulation
is that the Plan must be signed by all parties without any type of coercion, duress
or threat. If the parents enter into the Parenting Plan after a Consent Order has
been made, the plan, in most instances, replaces the arrangements in the Order.
Consent Order. When parties wish to make the agreement
official via a Court Order, it is called a Consent Order. They must file an Application
for Consent Order and, if accepted by the Court, it will become an Order. This allows
parents and other parties to follow the arrangements detailed in the Order via the
Court system.
Non-Agreement: The Court Process
There will be times where all parties involved will not be able to arrive at a mutual
agreement. An application to the Court will be made, and, in the first instance,
a conference usually takes places to try and determine the matter. If the parenting
agreement is still not agreed upon, a likely date for a Court hearing and other
important details will be provided.
In the case that the issue is considered urgent and warrants a speedy resolution,
an Interim Order will be made. The best interests of the child are considered and
decisions typically rely on sworn statements and evidence provided to the hearing.
The Child’s Best Interests
At the centre of parenting arrangements are the child’s/children’s best interests.
That is, a Court will use the best interests of a child as the principal method
for guiding the decision making process. Section 60 of the Family Law Act 1975 guides
what the child’s best interests are. In particular, unless there are specific circumstances,
a child’s best interests include having both parents in their life and having a
relationship with them.
It is important to note that at Robinson Gill we support this perspective and do
not act for parties who use children to achieve monetary gain or inflict emotional
hurt on the other partner.
Court-Appointed Independent Lawyer
Another method used to protect the child’s best interests is to have an Independent
Children’s Lawyer appointed. These are chosen by the Court and are used in complex
and delicate cases to represent the child. An emotionally-charged process, sometimes
a child’s best interests are placed on the sidelines. A court-appointed lawyer might
occur where a case is: particularly hostile; where there are claims of abusive behaviour
to the child; or, where there are ethnic differences between parties.
Family Reports: Child Relationship Issues
Parenting arrangements can be affected by the actual relationship between the child
and each parent. This can either be based upon what the child says or what has been
claimed by a parent. It can relate to who the child wants to reside with and where.
In such instances, where there is no agreement and it will be heard in Court, the
development of a Family Report will be an Order of the Court. That is, all parties
to the Agreement, including the child, are required to see a clinical psychologist,
who will write a report surrounding family relationships.
Before attending the hearing, the report is given to each party. The report’s findings
are used to help negotiate or inform the Judge during the decision-making process.
Other Services:
- Child Support
- De Facto & Domestic Relationships
- Domestic/Family Violence
- Financial Agreements
- Property Division
- Separation