13-08-09
Catherine Henry Partners Lawyers Newcastle
Changes to the Family Law Act came into effect on 1 July 2006, which have altered the way Courts now deal with children’s matters. The paramount consideration the Court and parties must take into account is still the best interests of the child. The changes to the law now require two tiers of considerations to be taken into account, when determining what is in the best interests of the child:
Primary considerations
- The benefit of the child having a meaningful relationship with both parents
- The need to protect the child from harm, due to be subjected or exposed to abuse, neglect or family violence
Additional considerations
- Any views expressed by the child and any factors the Court thinks relevant to the weight it should give to such views (eg age or maturity)
- The nature of the child’s relationships with their parents and other persons, including grandparents and other relatives
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
- The likely effect of any changes in the child’s circumstances, including separation from parents, siblings and relatives
- The practical difficulty and expense of facilitating the child spending time with each parent, and the potential impact on contact on a regular basis
- The capacity of parents and others to provide for the needs of the child, including emotional and intellectual needs
- The maturity, sex, lifestyle and background of the child and parents
- The child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and any likely impact upon that right from proposed orders
- The attitude to the child, and to the responsibilities of parenthood, demonstrated by parents
- Any family violence involving the child or members of their family, or any family violence order that applies
- Whether it would be preferable to make an order that would least likely lead to further Court proceedings
Changes have also been made to how the Court will deal with matters when parties cannot reach agreement. The focus will now be upon less adversarial proceedings, conducted in a more informal manner. There will also be a greater emphasis upon mediation and avoiding litigation, with family dispute resolution to be compulsory prior to new applications being filed as of 30 June 2007.
Equal shared parental responsibility
One of the most important, and often misunderstood, changes made to the Family Law Act relates to the issue of equal shared parental responsibility. When making a parenting order, the Court is now required to apply a presumption that it is in the best interests of the child for both parents to share responsibility for making decisions regarding important issues such as education, religion and health care. This presumption will not apply in cases of family violence or child abuse.
The presumption of equal shared parental responsibility does not mean that children should spend equal time with each parent. If such an order is made, the Court is required to consider whether equal time between parents would be in the child’s best interests. However, if the Court deems such an arrangement to be inappropriate, they must then consider allowing each parent “substantial and significant time” with the child. Again, such a determination must take into account practical matters, and whether it is in the child’s best interests.
Substantial and significant time is characterised by the child spending time with a parent on a mix of weekdays, weekends and holidays, and allows the parent to participate in the child’s daily routine and special occasions.
Helpful links:
www.familycourt.gov.au
www.fmc.gov.au
www.familyrelationships.gov.au
www.familylawcourts.gov.au
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/ (link to Family Law Act)
www.legalaid.nsw.gov.au
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