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Children Matters

Legal guardians for young lives - where children’s wellbeing come first.

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How do we reach an agreement?

Agreements can be reached through various means:

Informal Parenting Arrangements

  • Informal verbal agreements between parties.

  • Risks include potential disputes in the future without a legally binding agreement.

Parenting Plans

  • A written agreement recording care arrangements.

  • Not legally filed but outlines time, residence, parental responsibility, communication, and dispute resolution.

  • Not enforceable but useful for parents anticipating future changes.

Parenting Orders

  • Legally formalized through an Application for Consent Orders.

  • Filed with the Family Court and legally binding until the child turns 18.

  • Can be subject to contravention applications if not followed.

  • Court has powers to modify, and impose fines, bonds, prison sentences, or legal costs.

  • Changes require mutual agreement or a significant, unforeseen change in circumstances.

Establishing parenting orders is recommended for long-term agreements, providing certainty and enforceability. Compliance is obligatory, and they are valuable in resolving disputes effectively. 

How much time should both parents spend with the children?

If a parenting order mandates equal shared parental responsibility, considerations include whether equal time is in the child's best interests and whether it is reasonably practicable. Alternatively, substantial and significant time may be considered. The latter includes involvement in the child's daily routine, special occasions, and events significant to the child.

The court, as in the case of KML v RAE [2006] FMCAfam 528, defines substantial and significant time and outlines the expectations for midweek, weekend, holiday, and special occasion time.

Factors influencing the practicability of such arrangements include the distance between parents, their capacity to implement and communicate the arrangement, the impact on the child, and other relevant considerations.

What is parental responsibility?

The Family Law Act establishes a presumption that it is in the best interests of a child for their parents to share equal responsibility for the child. However, this presumption does not apply if there are reasonable grounds to believe that a parent (or someone living with a parent) has engaged in abuse of the child or family violence.

Long-term considerations related to the care, welfare, and development of a child include matters such as education, religious and cultural upbringing, health, the child's name, and changes to living arrangements that may significantly affect the child's time with a parent.

In the absence of harm and when reasonably practicable, an examination is conducted to determine if equal or substantial and significant time with each parent is appropriate.

How do we determine the best interests of the children?

In determining the best interests of a child, the Family Law Act outlines two tiers of considerations: primary considerations and additional considerations.

  1. The benefit to the children of maintaining a meaningful relationship with both parents.

  2. The need to protect children from physical or psychological harm, including exposure to abuse, neglect, or family violence. The Court is mandated to give greater weight to the consideration of protecting children from harm.

Tier 1

Primary Considerations

  1. The children's views, taking into account factors like their maturity and level of understanding.

  2. The children's relationships with each parent, as well as other individuals, including grandparents and relatives.

  3. The extent to which parents have been involved in decision-making for the children and the time spent with them.

  4. The fulfilment of parental obligations to support the child.

  5. The potential impact on the child of changed circumstances, such as separation from a parent or a person the child has been living with, including grandparents or other relatives.

  6. The practical challenges and expenses associated with a child spending time with and communicating with a parent.

  7. Each parent's ability (and that of any other person) to meet the child's needs.

  8. The maturity, sex, lifestyle, and background of the child and each parent, along with any other relevant characteristics.

  9. The right of an Aboriginal and Torres Strait Islander child to enjoy their culture and the potential impact of a proposed parenting order on that right.

  10. The attitude of each parent towards the child and their responsibilities as parents.

  11.  Any instances of family violence involving the child or a family member, as well as any family violence orders, particularly final orders or contested orders.

  12. Whether it would be preferable to make an order that minimizes the likelihood of further court applications and hearings regarding the child.

  13. Any other facts or circumstances deemed relevant by the Court.

Tier 2

Primary Considerations

When a relationship breaks down, navigating the process of reaching an agreement on the future care and living arrangements for your children can be emotionally challenging. Seeking specialised legal advice ensures that the paramount consideration is the best interest of your children.

Separation can be a challenging period for children, and their reactions may vary based on factors such as age, temperament, and the level of cooperation or conflict between parents. Providing support and encouragement for children to maintain positive relationships with both parents, grandparents, and other relatives can contribute to their ability to adapt to these changes.

Children from separated families have the potential to develop and thrive just as well as their counterparts, particularly when they continue to have supportive and caring relationships with parents and other significant individuals in their lives, such as grandparents and relatives.

In accordance with the Family Law Act 1975, parents are obligated to prioritize the best interests of the child. The Act emphasizes that both parents are responsible for the care and welfare of their children until they reach the age of 18. Furthermore, there is a presumption that arrangements involving shared responsibilities and cooperation between parents are deemed to be in the best interests of the child.

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