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Child Residence & Child Access
Background Information
Divorce can be a very distressing process not just for the parties involved but also for close family members. It is important to comfort your children through the process and make sure they understand what is going on and that it is not their fault. It is most important to keep the interests of the children in mind and ensure that they suffer as little as possible both during the divorce and in whatever arrangements are made for them subsequently.
Once you have separated from your spouse or partner, it is important to make suitable living arrangements for the children and ensure that both parents have contact with them.
The Family Courts encourage parties to reach amicable agreement wherever possible and this is an even more important aim where children are concerned. Children need certainty and stability. They are more likely to be able to adapt to a new situation if arrangements can be out into place as soon as possible and without animosity.
If you and your partner can reach agreement about the parenting of your children, where they should live and what contact they should have with the other parent, then you may wish to formalise that agreement by applying for a consent order from the Family Court.
If parents cannot agree about the parenting of their children, then an application can be made to the Family Court for its assistance in resolving disputes. Through the Court process, the Family Court will encourage parents to reach their own agreement about the children but ultimately, if parents are unable to agree, the Family Court can make parenting orders about a child.
Aims of the Law
The aim of the Family Law Act as it apples to children is to ensure that children receive proper and adequate parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities with regard to the welfare, care and development of their children.
The following principles are to be followed unless it would be contrary to the best interests of the child:
1. 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;
2. Children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
3. Parents share duties and responsibilities concerning the care, welfare and development of their children; and
4. Parents should agree about the future parenting of their children. Parents are encouraged to agree on matters concerning their children rather than seeking an order of the Court
Parental responsibility
Each parent of a child who is not yet 18 has all the duties, powers, responsibility and authority which by law parents have for their children. Parental responsibility is not affected by changes in your relationship for example if you separate or remarry.
Types of parenting orders available
Residence orders: An order stating that a child is to live with a particular parent. It is possible for a Court to make an order in favour of both parents specifying the times the child is to live with each. However, unless parents have been able to reach agreement, in most cases Courts will order that a child should live with one parent. Generally speaking, a split residence will require a considerable degree of co-operation between parties. If residence is ordered with one parent, the Court will make a contact order with regard to the other parent.
Contact Orders: A contact order sets out who the child will have contact with and the timing and arrangements for that contact to take place.
Specific Issues Order: This order deals with any other aspect of parental responsibility such as education, sport, hobbies, religion or medical matters.
Who can apply?
A parenting order may be applied for by:
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either or both of the child’s parents; or
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the child (although this is fairly unusual); or
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any other person concerned with the care, welfare or development of the child (eg a grandparent).
The child must be present in Australia when the application is filed, (or be an Australian citizen or resident), or a parent of the child is an Australian citizen or resident or present in Australia. An order cannot be made in relation to a child who is 18 years old or over, is or has been married, or is in a de
facto relationship. Parenting orders cease when a child turns 18, marries or enters into a de facto relationship.
Basis of the Courts decision
Whatever order the Court makes, the most important consideration is: What is in the best interests of the child? Section 68F lists the factors which the Court must consider in deciding what is in the best interests of the child. These can be summarised as follows:
1. The wishes of the child. The weight to be attached to this will depend on the factors which the Court thinks are relevant such as the child’s maturity and level of understanding. Children generally do not give evidence in Court. Courts will generally order a family report. Family reports are written by a Court mediator, psychologist or social worker. The report writer will spend time with the child and allow them to say as much or as little as they wish. They will not be asked to make a decision or choose between parents;
2. The nature of the relationship of the child with each of the parents and other people;
3. The likely effect of any change in the child’s circumstances including the effect of separation from either parent or other children with whom the child has been living;
4. The practical difficulties and expense of a child having contact with a parent and whether that will affect the child’s right to maintain a relationship with both parents;
5. The capacity of each parent or any other person to provide for the needs of the child including emotional and intellectual needs;
6. The child’s maturity, sex and background (including need to preserve a connection with the lifestyle, culture and traditions of Aboriginal and Torres Strait Islanders) and any other relevant characteristics of the child;
7. The need to protect children from being subjected to or exposed to physical or psychological harm through ill-treatment, violence or other behaviour;
8. The attitude of the children’s parents to the children and responsibility of parenthood;
9. Any family violence involving the child or a member of the child’s family;
10. Any family violence order which applies to the child or a member of the child’s family;
11. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings regarding the child;
12. Any other fact or circumstance the Court thinks relevant.
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