In the aftermath of the breakdown of any relationship it is children who are least able to have a voice in the future arrangements for their care welfare and development. It is up to their parents to put aside their own wishes and make decisions that are based on what is in that child’s or those children’s best interests.
This “best interest” concept is and has always been at the heart of the Family Law Act and is reflected in the Act as “the paramount consideration”. Federal Magistrates and Judges are mandated by that legislation when making decisions about children, to make those decisions that are in the children’s best interests.
The matters that are to be taken into account when deciding what is in a child’s best interest are set out at Section 60CC of the Family Law Act 1975 and we strongly recommend that you read that Section.
We have attempted to set out below the process that a Court would adopt when being asked to make Orders about children. The types of considerations that a Court must make are also the same types of considerations that parents must take into account when making their own arrangements for their children.
There is now a presumption enshrined in the Act that it is in a child’s best interests that there be “equal shared parental responsibility”. That presumption is not enlivened if there is or has been family violence or child abuse and is rebuttable, usually by evidence of irreconcilable conflict between parents. In the great majority of cases, parents will agree on “equal shared parental responsibility” and indeed there must be strong grounds to persuade a Court that it should be otherwise.
If there is to be “equal shared parental responsibility” then a Court must consider (but is not obliged to Order) that the children spend equal time with each parent. A Court will not Order equal time if it is of the view that it is not in the child’s best interests or if it not “reasonably practicable”.
If it does not Order equal time, then it must consider with whom the child is to live and with whom the child is to spend “substantial and significant” time. Substantial and significant time is defined as time at weekends, times during the week, times of special significance to the parent and the child and time that enables the parent to be involved in the child’s normal daily activity. Again a Court will not Order substantial and significant time if it is of the view that it is not in the child’s best interests or if it not “reasonably practicable”.
Difficulties arise with particularly young children and we recommend that you and your former partner jointly consult a child psychologist to discuss what may be “age-appropriate time” for the child or children to spend with each parent. If you are unable to reach agreement on that it is likely that the dispute will end up in Court at which time a Family Consultant will, in all likelihood be appointed to prepare a report for the Court setting out the consultant;’s recommendations. It is also likely that a Court will follow those recommendations, whether you agree with them or not.
As you will see, it is far preferable to reach agreement with your former partner about those arrangements.
Once you have reached agreement, that agreement can be embodied in Consent Orders and lodged with the Court. A Registrar of the Court will consider those proposals and if he or she is of the view that they are in the child;’s best interest, the Orders will be made. They are then enforceable and if not observed, the defaulting party can be dealt with by the Court.
Alternatively, you can agree on a parenting plan. A parenting plan must be in writing and signed by the parties. It is not enforceable as is an order of the Court but a Court can have regard to the terms of any such parenting plan when subsequently considering whether to make Orders.
If you and your former partner are unable to reach agreement in relation to the children you will need to participate in Family Dispute Resolution. This usually occurs at a Family relationship Centre or in some case Lifeline. At the conclusion of that process you will be given a Certificate pursuant to Section 60I of the Act. You will not be able to commence proceedings without that Certificate (unless you fall within the exceptions prescribed by that Section). Whether or not you and your former partner are able to agree on arrangements for the children you might like to consider participating in a “Post Separation Parenting Programme”, usually conducted by Relationships Australia or an equivalent organisation.