Following a separation, parenting disputes can occur where parents are unable to reach agreement about practical issues of parental responsibility. Disputes may arise about where the children will live, or the time that the children will spend with a non-resident parent. Parents may not be able to agree about how to divide the children’s school holiday time and special occasions, which parent should bear responsibility for major decisions relating to the children, or what arrangements to put in place for overseas travel with the children.
Family Dispute Resolution
Family Dispute Resolution (“FDR”) can assist parents to negotiate agreement about children’s arrangements. FDR is a form of mediation in which an independent dispute resolution practitioner guides and facilitates the parties’ discussions surrounding contentious issues. Where parents are able to resolve their dispute during FDR, the FDR practitioner will assist them to prepare and sign a parenting plan as an informal written record of their agreement. Note that parenting plans are not legally enforceable. Parents seeking to formalise their agreement about children’s arrangements should file Consent Orders with the Family Court of Australia.
If a party issues Court proceedings seeking parenting orders, the Family Law Act provides that a Court must regard the best interests of a child as the paramount consideration when making a parenting order.
When determining a child’s best interests, the Court’s primary consideration is the benefit to the child of having a meaningful relationship with both of their parents, balanced against the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The Court must also take into account a number of other considerations to the extent that they are relevant. These additional considerations include, but are not limited to:
- the child’s views, subject to their maturity or level of understanding;
- to what extent each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child;
- the what extent each parent has fulfilled their obligations to maintain the child;
- the effect of any changes in the child’s circumstances;
- the practical difficulty and expense of the children’s arrangements;
- the capacity of each parent to provide for the needs of the child;
- if the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture;
- any family violence involving the child or a member of the child’s family.
When making parenting orders, the Court applies a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for their care. This presumption does not apply in cases where there are reasonable grounds to believe a parent has committed family violence or abused the child.
If the Court makes an order that the parents retain equal shared parental responsibility, it must consider whether an equal care time arrangement is in the child’s best interests and reasonably practicable. If it is found that equal time is not in the child’s best interests, the Court must consider whether it would be in the best interests of the child for the child to spend substantial and significant time with each of their parents. Substantial and significant time requires that each parent have care of the child on days that fall on a mix of weekends, weekdays and holidays. This time should allow each parent to be involved in the child’s daily routine as well as significant events and occasions. If neither equal care time arrangements or substantial and significant care time arrangements are considered to be in the child’s best interests, the Court may make such Orders as it considers to be in the best interests of the child.
When parties issue Court proceedings seeking parenting orders, the Court will often direct the parties to attend upon a Family Consultant for the preparation of a family report. A family report is an independent assessment of the child, the parents, and the family’s history and dynamics which assists the Court to make a decision regarding what living and care arrangements are suited to the child’s best interests. A Family Consultant is an independent expert, often a psychologist, with extensive experience working with children and families. They can be appointed by the Court or by the parties.
At Farrell Family Lawyers we can provide you with practical advice about arrangements for your children and advocate for you in court if necessary. You may be able to reach agreement at Family Dispute Resolution (FDR) and we can refer you to FDR practitioners in your local area. We can also assist you to negotiate and formalise your agreement about parenting arrangements. Please contact us if you would like to speak to one of our specialist family lawyers.