Children

In dealing with parenting issues, the Family Law Act sets out the following important principles:

• Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
• Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;Parents should agree about the future parenting of their children; Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).In deciding parenting matters, the Court must always hold the best interests of the child as the most important consideration.

How does the Court work out what is the best interests of the child?

The Court follows a two-stage process.

The primary consideration of the Court is the right of a child to a meaningful relationship with both parents. Against this, the Court must also balance the need to protect children from violence, abuse and neglect. In balancing these two primary considerations, the Court also examines a number of other issues, which though important, are not given anything like the same weight as the primary considerations.

These other considerations include, among other things:

• Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
• The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or relative of the child);
• The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
• The likely effect on the child of any changes in the child's circumstances, including the likely effect on the child of any separation from: 
• The practical difficulty and expense of a child spending time with, and communicating with, a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to make provision for the needs of the child, including emotional and intellectual needs; 
• the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
• any family violence involving the child or a member of the child's family;
• the views and role of each of the child's parents; andother persons (including any grandparent or other relative of the child;
• any other fact or circumstance that the court thinks is relevant.

At each step of the way in resolving a dispute between parents, the Court will measure the alternatives against this 'best interests of the child' principle.

Shared Parental Responsibility

The next important thing to understand, is that unless there is significant violence, abuse or neglect from which a child needs to be protected, the Court must apply a presumption that it is in a child's best interests for the parents to have equal shared parental responsibility.

'Parental responsibility' means all of the duties and responsibilities that parents have in relation to their children. When the Family Law Act refers to 'equal shared parental responsibility', it's referring to two parents sharing these responsibilities equally between them, so that both parents decidine significant, long-term issues such as schooling, living arrangements, name changes and medical treatment.

If the Court decides that it will apply the presumption of equal shared parental responsibility, it must consider whether spending equal time with both parents is in the child's best interests. If the Court decides that an order for equal time is not in the child's best interests and reasonably practicable, the Family Law Act says that it must then consider whether making an order for substantial and significant time to be spent with both parents is both in the child's best interests and reasonably practicable.

Substantial and significant time has a special meaning in the Family Law Act: it involves a child spending time with both parents across the range of weekends, weekdays and holidays, so that each parent gets to be involved in the child's daily routine and on occasions that are significant to the child and each parent, such as birthdays, mother's day and father's day.

Family Dispute Resolution

Before commencing proceedings involving children in the Court you must first engage in family dispute resolution, or mediation. This is a non-court based process aimed at assisting parents to come to an agreement about how they will co-parent their children in the future. If the parents are able to come to an agreement, they have the option of either keeping the new arrangement as an informal agreement (which is not enforceable by the Court), or of formalising their agreement through consent orders. Consent orders are orders of the Court, and so if either parent does not comply with their agreement they will be breaching a Court order. If the parents cannot come to an agreement, the mediator will issue a certificate, which will enable the parents to go to Court seeking formal orders.

Canberra Family Relationship Centre

Canberra

Level 1,
Westfield Woden Offices,
1 Keltie Street,
Woden Town Square ACT

Phone: (02) 6122 2444
Fax: (02) 6281 7266

Email: info@canberrafrc.org.au

Operating times

Cooma satellite site

38 Bombala Street,
Cooma NSW

Phone: (02) 6452 7511

Operating times

Goulburn satellite site

220 Burke Street,
Goulburn

Phone: (02) 6122 2444

Child support

Parents have a responsibility to financially support their children in priority to every other obligation they may have. The Child Support Agency is the government department charged with ensuring that parents understand and meet their obligations to support their children after separation, and will assess the parents' child support liability and if necessary recover child support from a parent. If you don't agree with a child support assessment, there are processes for making a challenge within the Child Support Agency, through the Social Security Appeals Tribunal or through the Family Court.

Parents can also enter into child support agreements which can set the amount the parents agree will be paid by way of child support, together with the way in which the child support will be paid. There are strict rules that apply to the making and breaking of these agreements.

Urgency

If there is sufficient urgency in your case (for instance, because your child is at risk of violence or abuse, or because the other parent has abducted the child), the Court will accept an application even though you have not attended family dispute resolution. If the other parent has not returned your child, it is possible to seek a recovery order which will direct the Federal Police to collect the child. If you are concerned that the other parent will take your child overseas, it is possible to have the child placed on the Federal Police watch list, which will prevent the child from passing through any international seaport or airport in Australia.