When parties first consider getting a divorce or separating the first question they often ask is what arrangements should be put in place for the children. Determining the time each parent is to spend with a child can be further complicated when one parent is working on a fly-in-fly-out (FIFO) basis.
Parenting matters generally
In all parenting matters the paramount consideration of the Family Court is to determine what would be in the child's best interest.1 There are a number of factors the Family Court may take into account when making this determination. Please see our article My Child, My Rights for further information as to how parenting matters are decided in the Family Court.
Who makes the decisions?
In family law there is a presumption that both parents have equal shared parental responsibility for a child unless otherwise ordered by the Family Court. This means that both parents are responsible for making major long term decisions for a child. These can include things like education and healthcare. In some circumstances, such as matters involving domestic violence or child abuse, the Family Court may make an order for one party to be given sole parental responsibility.
Who does the child live with?
If the Family Court has made an order for the parents to have equal shared parental responsibility they are obligated to consider whether it would be in the best interests of the child for them to reside equally with the parents. In determining whether this type of arrangement would work well for the child the Family Court will look at a range of factors such as the distance between the parent's homes and the parent's ability to communicate with each other.2
If an order for equal time would not be appropriate in the circumstances the Family Court will then consider whether an order for substantial and significant time would be in the best interests of the child. The Act has defined substantial and significant time to be a combination of time on weekdays and weekends, time which affords the parent an opportunity to be involved with the child's everyday routine and to participate in special occasions or events with the child.
In addition to face to face contact the Family Court may also make orders for telephone and electronic communication, such as Skype, which can often assist families to stay connected when one parent works away from the child.
The first step in any parenting dispute is to negotiate with the other parent as to the future care arrangements of the children. If you are unable to reach an agreement you will need to attend Family Dispute Resolution with a Family Dispute Resolution Practitioner. If, after attending mediation, you are still unable to reach agreement you will be issued with a section 60I certificate and may apply to the Family Court for parenting orders.
If you and the other parent are able to reach agreement this can be documented by a Parenting Plan. Although not legally enforceable, a parenting plan can be an effective tool to establish arrangements including who the child lives with and how they spend time with the other parent.
Parenting plans offer flexibility and can change by agreement as your family's circumstances change, which can be very beneficial to FIFO families. When agreed upon, Parenting Plans can be easily changed when matters such as a significant roster change arises or if the FIFO parent ceases to work away. As these circumstances are likely to have an impact on the amount of time the FIFO parent is available to spend time with the children, it is important to ensure any agreement, either documented in a Parenting Plan or Family Court Orders, is specific to your family's circumstances.
Alternatively, an agreement may be documented by way of a Form 11 Application for Consent Orders and filed in the Family Court.
If you are unable to reach agreement in relation to parenting or financial matters and need to commence or respond to proceedings in the Family Court you ought to consider engaging a legal representative to appear on your behalf.
The Family Court is often unable to take into account or facilitate listing court hearings around work obligations or rosters.
A legal representative will attend court on your behalf for most hearings which will assist in reducing the amount of time you would be required to take leave from work. There are still times when you may be required to personally attend the Family Court however your lawyer will explain these hearings in greater detail should they become necessary.
1 Family Law Act 1975 (Cth) s60CC.
2 H & H (2003) FLC 93-168.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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