D ISPUTES I NVOLVING C HILDREN Chapter 7

D ISPUTES I NVOLVING C HILDREN Disputes concerning children are settled by the Federal Magistrates Court or the Family Court of Australia. Part VII of the FLA sets out laws regarding children. 1 st July 2006 major changes to custody laws took place, with the introduction of the Family Law Amendment (shared Parental Responsibility) Act 2006.

A REA OF THE LAW Part VII of the Family Law Act sets out two main objectives: Parents have the obligation to ensure that their children receive parenting that helps them achieve their full potential Parents to ensure that they carry out their duties and responsibilities regarding their children S 60B(2) sets out the principles behind these objectives.

S ECTION 60B(2) P ART 1 The children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together Children have the right of contact with both their parents on a regular basis as well as other people who are significant to their care, welfare and development Parents should share duties and responsibilities concerning care, welfare and development of their children

S ECTION 60B(2) P ART 2 Parents should agree about the future parenting of their children As much as possible, the act encourages parents to come to an agreement with one another rather than seeking a court order which might produce a result that neither parent is happy with

F OUR WAYS TO DEAL WITH DISPUTES INVOLVING CHILDREN i. Agreements ii. Consent orders iii. Parenting plan iv. Have the court decide

I. A GREEMENTS Parties can agree to resolve all issues relating to the children between themselves and not involve the court in any way Most preferred way

R EFLECTION ACTIVITY What are the benefits of resolving disputes about children of a divorce using agreements? What are the disadvantages?

II. C ONSENT ORDERS The parties can apply for an order made by consent in the court. Consent orders are signed by each party and filed in the court so that it can be enforced by the court if either party breaches agreed conditions.

III. P ARENTING PLAN A written agreement between parents of the child which must deal with: Residence Contact Maintenance Other parental responsibilities

III. P ARENTING PLAN Each parent needs to obtain independent legal advice or consult a family counselor before plan can be registered. Enforceable as an order of court if one party breaches its conditions Although parenting plans are not used as much as consent orders, they are generally more comprehensive than consent orders

iv.H AVING THE COURT DECIDE If husband and wife cannot agree, either mother or father can make an application to the court for parenting orders The court then must consider the best interests of the child

Within this new system the courts are regarded as the last resort to resolve children’s issues. Before an application can be made to the court regarding the custody of the child, parties are required to attend a family dispute centre to try to resolve the custody issues themselves. If they do not resolve the issue, the court will made an order in relation to custody and other issues.

Orders may need to be made by the court in any aspect of care, welfare, and development. They usually are required where parents are not on good terms and where shared parenting may/cannot exist. Orders can include: No. of phone calls that can be made by one parent to the child each week Keeping each other informed of address/phone numbers Authorising doctors, dentists ect to deal with both parents Authorising schools to give copies of reports/attend events to the other parent One parent not denigrating the other parent in the presence of the child.

T HE F AMILY L AW A MENDMENT (S HARED P ARENTAL R ESPONSIBILITY ) B ILL 2005 Passed on 10 May 2006 Commences 1 July 2006 Costs $397.2 million over 4 years “the most significant changes to Family Law Act 1975 since its inception 30 years ago”

The new system is designed to ensure: The children spend equal or at least substantial time with both parents (unless not in the best interests of the child) AND That being a parent is a responsibility which should be shared and so parents should consult and agree on major issues concerning their children The Orders that the court now typically make are: The child live with the mother and the father in the following manner (if co-parenting if not possible) The child spends time with and communicates with the (father/mother) at the following times Parental responsibility – other aspects of parental responsibility

The objective of this change was that children have the right to know both parents and a right to spend regular time with both parents and that they should have the benefit of having a meaningful relationship with both parents The ‘best interests of the child’ is still paramount in determining where the child should live and who they spend time with. The FLA contains a presumption that it is in the best interests of the child to have equal shared parental responsibility.

This presumption is in place unless circumstances warrant it being set aside eg violence or abuse Shared parenting does not automatically mean equal time as there may be a good reason for this eg. Parents in different towns/states, age of child etc The court will endeavour to still make sure that the child has substantial time with each parent

M AJOR CHANGES Equal Shared Parental Responsibility Equal Time (can be rebutted) New terminology Compulsory attendance at Family Dispute Resolution Centre (some exceptions apply) New best interest criteria Parenting plans Conduct of proceedings (less adversarial approach) New compliance and contravention regime

M AJOR LONG TERM ISSUES A) the child’s education (both current and future) B) The child’s religious and cultural upbringing C) The child’s health D) The child’s name E) Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent

P ARENTING ORDERS Parenting orders are no longer described as ‘residence orders’, ‘contact orders’ or ‘specific issues orders’ but rather parenting orders that provide with whom a child is to live, spend time, communicate or that allocate parental responsibility or a component of parental responsibility. When making a parenting order in relation to a child, court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

E QUAL TIME It does not provide that a child MUST spend equal time with each parent Rejects notion of “50/50” custody The court must CONSIDER making an order that the child spend “equal time” with each parent and whether this would be in the best interests of the child Whether spending equal time with each of the parents is a practicable arrangement. For instance, how far parents live from each other.

B EST INTERESTS OF THE CHILD New section 60CC replaces section 68F(2) which sets out how a court is to determine the best interests of a child. Establishes a two tiered approach – primary and additional considerations that a court must consider to determine the best interests of children.

P RIMARY CONSIDERATIONS (60CC) the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect or family violence.

A DDITIONAL CONSIDERATIONS (60CC) The additional considerations a court must consider include those currently set out in existing subsection 68F but with some modification in terminology. For example, new section 60CC states that the court could consider: '... any views expressed by the child’ [ new paragraph 60CC(3)(a)] (in contrast to ‘any wishes expressed by the child’), the nature of the relationship of the child with other persons including grandparents or other relatives [ new subparagraph 60CC(3)(b)(ii )].

Section 60 CC of the FLA sets out what the court must consider when determines what is in the best interests of the child. Eg, wishes of the child and abuse issues For when the court considers the wishes of the child: The child does not have to say who they would prefer to live with If they do say the court must consider it They can find out the wishes of the child through: a family report when a counsellor or social worker interview the child with each parent, speaks with them individually, observers interacts and then makes a recommendation in the form of a written report.

OR by appointing an independent child lawyer for the child who will put forward the child’s views before the court. They are generally appointed by and funded by legal aid. Generally the older the child the more weight the court puts on their wishes. It is uncommon for the court to place a child over 14 yrs with a parent other than the one they wish to live with. They also look at where siblings are living and try to keep children together as far as possible. Read Case Study Page 82 Q1-4

If there is evidence of abuse or family violence the court can order that the child only see that parent where there is supervision. This can be supervised by relatives that the court considers trustworthy or they may meet at a contact centre where there are trained persons available to supervise. Due to the size of Australia and globalisation, the court is now receiving many relocation cases. They must still decide looking at the best interests of the child. Read Case Study page Q1-3

Child abduction is a great fear for some parents, especially the fear of taking the child overseas. If this is a real fear the child could be placed on a ‘watch list’ by the courts which is then operated by the federal police. Australia signed the ‘Hague Convention’ in 1980 which is an agreement with other signatory countries to try to help return a child to its country of origin if it has been abducted. However there are many countries that have not signed this convention.

R EVIEW Q UESTIONS Page 94 Questions 1-5