CHILDREN

FAMILY BREAKDOWN CAN HAVE A NEGATIVE IMPACT ON CHILDREN. THEY CAN BE THE INNOCENT VICTIMS CAUGHT UP IN THE ADULTS' EMOTIONAL WHIRLPOOL. THE LAW PLAYS AN IMPORTANT ROLE IN THE PROTECTION OF CHILDREN BY MAKING SURE THEIR BEST INTERESTS ARE MET.

PROTECTING CHILDREN'S INTERESTS Since its introduction in 1975, the Family Law Act has been amended many times. It is now almost double its original size. In particular, the sections relating to children have undergone significant reform. The philosophy behind the changes is a desire for the law to meet the best interests of children.

YOU BE THE JUDGE Consider the following cases and decide whether you agree with the Family Court. Case one Wendy applied to the Family Court for the parenting responsibility of her nephew John, aged 11 years. For most of his life, John's mother has been in jail. His father cared for him for approximately two years before leaving him with his paternal grandparents. John has had serious health issues as well as suffering anxiety as a result of the death of his grandfather. As his grandmother was an alcoholic, the court held that it was in John's best interests that he be placed in the sole care of his aunt.

CASE 2 By the age of three, Rosie wanted to be called by a boy's name and insisted she was a male. When she was 16 years old, her parents sought Family Court approval to begin hormone treatment for her gender identity disorder in order to encourage masculine development. A specialist provided advice that Rosie's disorder was serious enough to place her in the transsexual range. The court held that the treatment would promote Rosie's best interests.

CASE 3 Before his parents separated, Robert, aged 10, was a witness to his father's violence directed at his mother. Robert told the court that he does not trust his father and believes he is dangerous. Robert's views were supported by an independent expert. The court found that it would be in the best interests of Robert if his surname was changed to that of his mother's.

PARENTING PLANS Many separating parents reach agreement about the arrangements for the care of their children without resorting to court action. Agreement may be reached privately by the parents or with the assistance of a family counsellor or mediator. The agreement can be recorded in a written parenting plan that is dated and signed by both parents. The Family Law Act states a range of matters that may be included in a parenting plan, including who the child will live with, arrangements for special days such as birthdays, what amount of time the child will spend with each parent and what decisions the parents will share, for example, which school the child will attend. Parenting plans are not legally enforceable. However, the parents may apply to the Family Court for a consent order to make the arrangements enforceable.

PARENTING ORDERS In some cases, the issues relating to children cannot be sorted out by the parties. As a last resort, the following persons may apply to the court for a parenting order:  either or both parents  the grandparents  the child  any other person who is concerned with the welfare of the child.

REASONS TO GIVE MOTHERS LESS THAN 30 PER CENT TIME WITH CHILDREN, 2007–08 TO 2010–11 – SOURCE: FAMILY COURT OF AUSTRALIA 2011

The parents are required to attend family dispute resolution (FDR) before applying to the court. In some circumstances, for example, where there has been a history of violence or drug abuse, FDR is not required. The court must consider the circumstances of each case and make a decision based on the child's best interests. As a starting point, the Family Law Act requires the court to assume that it is in the child's best interests for both parents to have equal shared parental responsibility for the child. Equal shared parenting means that both parents are required to consult with each other about major issues such as education or medical decisions. It does not automatically mean the child has to spend equal time with each parent. If the parenting order provides that the parents have equal shared responsibility, the court has an obligation to consider:  whether equal time is practicable and in the child's best interests, or  whether substantial and significant time with each parent is practicable and in the child's best interests

Shared responsibility is not always practicable or in the child's best interests, for instance, if there is a risk of family violence or abuse. The time a parent can spend with children may be reduced to protect the children. The chart above indicates reasons why mothers received less than 30 per cent time with their children.

WHERE SHOULD GABBY LIVE? Since his parents separated, 12 year-old Edward has lived with his father. He has been angry with his mother because he feels abandoned by her. As a result, he has been reluctant to spend time with her. His sister Gabby, aged 7, has lived primarily with her mother and her mother's new partner. However, as her mother now proposes to move to another suburb, Gabby would have to change schools. Gabby's father is concerned about the proposed move and wants Gabby to live primarily with him. During the trial, the court heard Gabby misses her father and wants to spend more time with him. However, the court expressed doubt about whether spending equal time with both her parents was in the girl's best interests. The judge commented that equal time with each parent meant that children were being committed to childhoods moving week about, from one home to another, with no primary place to regard as theirs. The court ruled that Gabby should live primarily with her mother and live with her father for a significant time including half the school holidays and alternate weekends from Friday after school until Tuesday before school

CHILD SUPPORT Each family is different and many separating parents reach their own private agreement about the financial support of their children. If this is not possible, the child support scheme enables the parent who has the ongoing daily care of a child (the payee) to apply to the Child Support Agency (CSA) for child support from the parent who has a legal liability to pay (the payer). To be eligible to apply for child support the applicant must: - be separated from his or her partner, this includes same-sex - partners - have children under the age of 18 years - provide at least 35 per cent of the care to the children.

CHILD SUPPORT AGENCY The Child Support Agency has the power to enforce the payment of child support if the payer falls into arrears. In changes to the law commencing in 2008, payees are now also able to initiate court action to enforce payment of child support money. One criticism is that for some payees, the legal costs of initiating court action outweigh the value of the money in arrears.

FINANCIAL SUPPORT FOR ADULT CHILDREN The Family Law Act provides that the court may make an order requiring a parent to financially support his or her child, even though that child is 18 years or older. Before ordering that maintenance be paid to an adult child, the court must be satisfied that financial support is required: - to enable the child to complete his or her education (including secondary and tertiary education) - because the child has a mental or physical disability. Consider the following case. Miranda turned 18 years of age halfway through year 12. Her father refused to pay any more child support. An application was successfully made to the Child Support Agency to have child support paid until the end of the school year.

TEST YOUR UNDERSTANDING AND APPLY YOUR UNDERSTANDING Questions 1, 2, 3, 4, 5, 6, 7