Parenting Matters - A General Overview
A family lawyer’s role is to assist parents and significant persons in resolving matters concerning children.
The Family Law Act 1975 (“the Act”) is focused on the best interests of the child. Those interests are met by the child having a meaningful relationship with both parents and being protected from harm, abuse, neglect or family violence. Where there is a risk, the Court is to give greater weight to protecting the child.
Additional considerations in determining a child’s best interests are found in section 60CC(3) of the Act which includes but not limited to, the views, maturity and background of the child.
The children’s wishes may be given consideration when determining their best interests. Their age, maturity, understanding and strength of their wishes will be relevant, but their wishes alone may not be decisive.
The court will look at their relationship with each parent and weigh up any change to their current circumstances and effect on any separation from either parent.
When considering a parenting order, the Court must determine;
- Whether the parents should have equal shared parental responsibility (“ESPR”), to decide major long term issues regarding the child (such as education, medical and living arrangements). The Court will order ESPR unless there are grounds to believe that a parent has engaged in family violence, child abuse or if it is not in the child’s best interests.
- Whether it is in the child’s best interest and reasonably practicable to spend equal time with each parent, and if not, substantial and significant time. Substantial and significant time allows a child to spend weekends, weekdays and holidays with the other parent, allowing involvement in daily routine and special occasions.
- The meaning of reasonably practicable is defined in section 65DAA;
- How far apart the parties live from each other;
- The parent's respective current and future capacity to communicate and implement the arrangements for the children;
- The impact of arrangements for the children;
- Other relevant matters.
- If parties reach agreement, it can be formalised as a Parenting Plan or Consent Order. Only a Consent Order is legally binding and cannot be amended without agreement or further court order. A family lawyer can assist to prepare these documents.
- Parties in disagreement about parenting matters must attempt mediation to resolve the dispute before commencing Court, except in limited circumstances or if it is deemed inappropriate by the mediator provider. If mediation fails, a section 60I certificate will be issued which allows a party to commence Court proceedings if required. Otherwise, parties can attempt mediation again, if appropriate. A family lawyer can direct you to a mediator provider and explain to you what to expect during this process. They can also properly document any agreement reached or assist to prepare your court documents.
- To assist in determining parenting arrangements, a family report can be prepared by a clinical psychologist which will contain a professional assessment of your family and recommendations for arrangements that will best meet the needs of the children. The report is one piece of evidence and the court is not bound by it. A family lawyer can assist to arrange this for you.
- In some circumstances, an independent children’s lawyer (“ICL”) can be appointed to assist the Court, only if proceedings are on foot.
- Court is always a last resort. Parents are encouraged to do everything in their power to ensure children’s arrangements work smoothly and come to their own arrangements that best meets their children’s needs and circumstances.
Please do not hesitate to contact the Family Law Team or Amanda Di Placido, if you would like to discuss this further or if you have any questions.
Written by RNG Lawyers Accredited Family Law Specialist, Amanda Di Placido