Australia: My child, my rights! Care of children following a family separation

Last Updated: 3 February 2014

When parties separate and children are involved, often the first issue is where the children will live and how much time they will spend with each party. Often parents will seek advice from a solicitor wanting to know their rights with respect to the children.

Despite separating, and irrespective of where the children are living, both parents continue to have responsibilities for their children, and parents should always endeavour to act, and make decisions, which take into account the interests of the children.

Except in certain circumstances, such as where there has been family violence or there is, or has been, a risk of abuse of the children, before any party can commence proceedings in relation to children, the Family Court requires that the parties first attempt to resolve matters through Mediation.

If parties are able to reach agreement regarding the arrangements for the care of the children, that agreement can be recorded by way of a Parenting Plan and registered in the Family Court, or formalised by way of Consent Orders. The main benefit of this is that, if a party fails to follow the agreement, the other party can apply to the Family Court to enforce it.

If the parties are unable to reach an agreement in relation to the care of the children, they would need to bring an Application seeking orders from the Family Court in relation to the children.

Section 60CC of the Family Law Act 1975 (Cth) ("the Family Law Act") sets out the factors which must be taken into account by the Family Court when determining what is in the best interests of the children.

Section 60CC(2) provides that the primary considerations are:

  1. the benefit to the child of having a meaningful relationship with both of the child's parents, and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section60CC(3) provides several additional considerations which must can be considered by the Family Court including:

  • any views expressed by the children,
  • the nature of the relationship between each child and each parent,
  • the nature of the relationship between the child and other people such as a grandparent or other relative,
  • any failure of a parent to take the opportunity to participate in decisions about major long-term issues in relation to the child, spend time with the child, communicate with the child or maintain the child,
  • the likely effect of any changes in the child's circumstances,
  • the practical difficulty and expense of a child spending time with and communicating with a parent, and
  • the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs.

Section 60CC(2)(m) provides that the Family Court must also consider "any other fact or circumstance that the court thinks is relevant," allowing vast scope of considerations.

Family Law legislation presumes that it is in the best interests of the children for both parents to have equal shared parental responsibility.

The underlying principle is that children have a right to know both parents, and parents have a right to have a say in their children's welfare and development. The effect of the presumption is that when determining whether both parents have equal shared parental responsibility, the court will assume that it is in the children's best interests for this to happen.

However, in cases where there has been family violence, or the children are at risk of harm or abuse, the presumption does not apply, and the best interests of the children will be the paramount consideration.

Equal shared parental responsibility refers to both parents having an equal role in the decision making process about important and long term issues that will affect their children, such as education and health care. Equal shared parental responsibility does not necessarily mean that the children will spend equal time with each parent.

If the Court confirms that is in the best interests for the parents to have equal shared parental responsibility, then it must consider making an order that the parents spend equal or significant time with the children.

In considering whether equal time with both parents is in the best interests of the children, the Court must consider any practical consequences of the arrangement, such as how far apart the parents live from one another, the parents' current and future income capacity, the impact the arrangement would have on all parties, the parents' ability to be able to communicate with one another and the effect the arrangement would have on the children. These factors are set out more extensively in H & H (2003) FLC 93-168.

Where equal time is not practical, the Court must consider an order for substantial and significant time, being more than just alternate weekends and half the school holidays. It is defined by the Family Law Act to include day to day routine activities that fall on weekends, holidays and weekdays and includes time that allows the child or parent to be involved in occasions or events that are significant to the children or parent.

"The take home message? Family Law legislation is clear: regardless of parents' personal views about their perceived rights, the Family Court's paramount consideration is what is in the best interests of the children and it will single-mindedly, relentlessly and objectively, prioritise the children's interests above all else."

With thanks to Loretta Care and Alison Brooks for their input and assistance with this article.

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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