Parenting after separation
Each and every child and family is different. Parenting arrangements that are agreed or ordered by the Court, if parents can’t agree, must be in the child’s best interests. This is called the paramountcy principle; children’s best interests always come first. Arrangements for a child must meet his or her best interests, having regard to that individual child’s age, stage of development, level of maturity and individual physical, social, emotional and educational needs.
It is commonly accepted that children who have less conflict between their parents do better. You are encouraged to focus upon the best interests of your children (which are paramount) and to endeavour to resolve issues between you and only use Court proceedings as a last resort.
Parents are encouraged (section 63B, Family Law Act) to agree about matters concerning their child, to take responsibility for their parenting arrangements, to try to resolve parenting conflict, to use the legal system as a last resort, to minimise the possibility of ongoing and future conflict, and to regard their child’s best interests as the paramount consideration.
Mediation / Family Dispute Resolution
The Family Law Act requires that parents first attend Family Dispute Resolution to try and resolve their parenting dispute before accessing the Federal Circuit and Family Court of Australia to obtain parenting orders. There are however exemptions for situations involving family violence, child abuse or extremely urgent matters. If the exemptions do not apply, you cannot start a Court case about parenting issues, unless you have a certificate from a mediator (called a Section 60I Certificate confirming that mediation has not resolved your matter, for whatever reason).
The joint mediation can take place by shuttle if you are not comfortable being in the same room as your partner, that is, with each of you in separate rooms.
If agreement can be reached, the Family Dispute Resolution practitioner can assist you by preparing a Parenting Plan to be signed by each of you. A Parenting Plan is not legally binding however, it is valuable evidence of each party’s intention as to what the agreement between them would be. You can also reach agreement at mediation about filing an Application for Consent Orders to formalise parenting arrangements and ensure they are enforceable.
If agreement cannot be reached at the joint session, the practitioner will issue a section 60I certificate. The parties then have the right to issue Court proceedings, should they wish to do so.
Parental responsibility
“Parental Responsibility” is defined in section 61B of the Family Law Act as being all the duties, powers, responsibilities and authorities that parents have in relation to children.
Each parent continues to have parental responsibility for a child (including following separation), subject to any specific Court Orders made with respect to that child.
Parental responsibility refers to responsibility for decision making. It does not mean that the child lives with each of his or her parents equally or create a presumption to be applied by the Court when making a parenting order.
If it is safe to do so, and subject to any specific Court Orders, the parents of a child are encouraged to consult each other about major long-term issues in relation to the child and, in doing so, have regard to the best interests of the child as the paramount consideration (section 61CA of the Family Law Act).
Major long-term issues with respect to a child include:
the child’s education;
the child’s religious and cultural upbringing;
the child’s health;
the child’s name; and
changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Subject to any Court Orders made, parents are required to jointly sign important documents, such as change of name documents, passport applications and school enrolment forms.
The Court can make orders dealing with the allocation of responsibility for making decisions about major long – term issues in relation to the child and may provide for parents to have for joint decision making responsibility, or in some circumstances, for a one parent to have sole decision making in relation to all or specified major long-term issues. Whether or not the Court allocates sole decision making responsibility to one parent will depend on the facts of the case.
Parents are not required to consult about decisions made during the time the child is in their care, on issues which are not major long-term issues. For instance, the parent who has the care of the child does not need to consult with the other parent about what the child eats or wears, as these are usually not major long-term issues.
The legislative pathway for considering time arrangements
There is no longer any presumption of equal shared care, instead the Court will determine what parenting arrangements are in the best interests of the child, including by ensuring their safety, by considering the matters set out in section 60CC of the Family Law Act.
The Court must consider the following matters:
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of:
The child; and
Each person who has the care of the child (whether or not a person has parental responsibility for the child)
(the court must consider any history of family violence or abuse and any family violence order that applies or has applied to a child or member of the child’s family)
Any views expressed by the child;
The developmental, psychological, emotional and cultural needs of the child;
The capacity of each person who has or is proposed to have parental responsibility for the chid to provide for the child’s developmental, psychological, emotional and cultural needs;
The benefit of the child being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
Anything else that is relevant to the particular circumstances of the child.
There are additional matters the Court must consider if the child is an Aboriginal or Torres Strait Islander, including the child’s right to enjoy by having the support and encouragement necessary to connect with and maintain their connection with members of their family and with their community, culture, country and language.
There is no “standard” or “usual” parenting arrangement/s and each case is decided in consideration of the best interests of each individual child in his or her individual circumstances, are and remain the paramount consideration.
