Making decisions about parenting arrangements after separation can be a very difficult process. Under the Family Law Act, all couples are required to attempt to resolve parenting matters outside of court. The Act requires that all parties attend upon mediation with a Family Dispute Resolution service before they can go to court. There are some exceptions to this rule, particularly if there are concerns for a person’s safety. If the matter is not suitable for mediation, or mediation is unsuccessful parties will be issued with a Section 60I certificate which will allow either party to make an Application to the Court to have the matter determined by a Judge. It is also very important to note that the Family Law Act says that all decisions that are made about children must be to uphold the best interests of the child.
Under the Family Law Act, lawyers need to look at lots of information prior to assessing what is right for children, however, the main priority is always what is in the children’s best interests. When determining what is in a child’s best interests, the following things are generally assessed:
- The benefit of the child/ren having a meaningful relationship with both parents.
- The effect of any change in living arrangements on the child/ren.
- A history of family violence in either household.
- Whether there is any risk of harm to the child/ren physically or psychologically.
- The lifestyle, maturity and background of the child/ren and the child/ren’s parents.
- Each parent’s capacity to facilitate a meaningful relationship between the child/ren and the other parent.
- Depending on the age of the child/ren, their wishes can also be taken into consideration.
Under Section 61DA(1) of the Family Law Act 1975 there is a presumption that both parents will share equal shared parental responsibility for the Children. This means that both parents will consult each other and make joint decisions in relation to the major issues such as religion, education, health and housing. In certain circumstances, such as in the presence of family violence, the presumption will not apply and parental responsibility will be provided to only one parent under Section 61DA(2) of the Family Law Act 1975.
Following an Order for equal shared parental responsibility, the Court must consider as a starting point for determining the amount of time the Children spend with each parent, whether it is in the child’s best interests and reasonably practicable that the Children spend equal time with each parent (Section 65DAA(1) of the Family Law Act 1975).
If the Court considers that it is not in the child’s best interests, or reasonably practicable for the children to spend equal time with each parent, the Court will then consider whether it is in the child’s best interests and reasonably practicable that the Children spend significant and substantial time with each parent (Section 65DAA(2) of the Family Law Act 1975). Section 65DAA(3) of the Family Law Act 1975 states that significant and substantial time must include days that fall on weekends and holidays as well as days that do not fall on weekends or holidays. In addition the time must allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and the parent.
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