Shared Parental Responsibility
Additional considerations that must be taken into account include any views expressed by the child, the nature of the child's relationship with his or her parents and others (such as grandparents), and practical difficulties of a child spending time with a parent. Please note that substantial and significant time encompasses day-to-day routine time and not merely weekends and holidays.
Responsibility for day to day care, welfare and development means having the right to make decisions about the child's daily needs and requirements. Generally, the parent with whom the child resides has this responsibility. Responsibility for long term care, welfare and development means having responsibility for important decisions including health, education and religion of the children. During marriage and after separation and divorce, parents have joint responsibility for these issues unless the Court orders otherwise. They share equally in making important decisions about their children's future.
The Family Law Act also allows grandparents to make applications for their grandchildren and they are referred to under sections 60B, 63C and 64B of the FLA.
Parenting Plans
A Parenting Plan is an agreement that sets out parenting arrangements for children and can take any form, but to be recognised by Court, it must be in writing, dated and signed by both parents. It must be made free from any threat, duress or coercion. A parenting plan covers the day-to-day responsibilities of each parent, the practical considerations of a child's daily life, as well as how parents will agree and consult on important, long term issues, such as which school children will attend. This avoids a long and protracted argument in the Courts.
Parenting Plans are subject to easy amendment and variation and are governed under Division 4 of Part VII of the F.L.A. Breaches of Plans are not as enforceable as breaches of Court Orders, however, one must consider the cost effectiveness of a plan compared to the costs associated with going to Court over breached Orders. Please note that once Orders are in place it does provide greater protection and confidence that the other party will abide by those Orders. The Court takes breached Orders seriously. It also takes into account times when parents fail to fulfil their major parenting responsibilities, such as not paying child support or not turning up for handover.
ICL
Please note, that in family law proceedings concerning a child, the Court may order that an Independent Children's Lawyer (ICL) be engaged to represent the interests of the child. This lawyer must form an independent view of what is in the child's best interests and inform the Court of this view.
Dispute Resolution
Since mid 2007, parents are required to attend Family Dispute Resolution sessions and attempt genuine efforts to resolve problems prior to running a parenting matter in the Court. Parenting arrangements and agreements can be worked out jointly by separating couples with the assistance of the new Family Relationship Centres or other accredited services. Please note that dispute resolutions sessions are not compulsory if there are allegations of family violence or child abuse. Family Relationship Centres are meant to provide up to 3 hours of dispute resolution sessions. We can recommend excellent and properly qualified mediators who assist the parties in a real and practical way to reach settlement. They are highly skilled and through them we offer our clients the opportunity to avoid prolonged litigation.
The Changes since 2006
On 1 July 2006, reforms to family law emphasized the importance of children. The changes were based on the following important principles:
all children have the right to know both their parents and to grow up with their love and support;
all children have the right to be protected from harm;
parenting is a responsibility that should be equally shared, provided this does not put children at risk; and
parents should be able to work out together what is best for their children, rather than fighting in a Courtroom.
It is the responsibility of both parents for children's physical and emotional well being, when violence or abuse is not alleged.
Some relevant procedural matters
You should be familiar with the following laws:
Rule 1.05 Pre Action Procedures
Chapter 2 Family Court Rules Applications
Division 12A Children Applications Court Procedure
Practice Note 2 of 2006 Children and Sections 69ZM-ZX
Section 11A Family Consultants
Sect ion 13C FMC Consultants
Section 62G Family Reports
Section 68L Independent Children'sLawyer
Section 60B, 60CC, 61DA Best Interest
Interim Oders
Appeals
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