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Following separation, one of the most important matters to address is the care arrangements for your children. Separation does not diminish a parent’s responsibility to their children. Our Family Lawyers Central Coast understand the difficulty of navigating parenting post separation and are here to help.

Important Terms

The Family Law Act 1975 does not refer to “child custody”. Instead, parents must decide upon the “live with” and “spend time with” arrangements for their children.

Below are some other important terms parents need to know when dealing with parenting matters following separation:

“Best interests of the child”

When deciding to make a parenting Order, the Court must have regard to the best interests of the child. To determine the best interests of the child, the court is required to consider two primary considerations:

  1. The benefit of a child having a meaningful relationship with both parents; and
  2. The need to protect the child from physical or psychological harm by being subjected or exposed to abuse, neglect or family violence.

In addition to the two primary considerations, the Court may also consider the following factors:

  1. Any views expressed by the child and any factors (including the child’s maturity, age and understanding) that impact upon the child’s view;
  2. The nature of the relationship the child has with each of their parents and other persons such as grandparents or relatives;
  3. The extend to which each parent has:
    1. Participated in decision making about the child;
    2. Spent time with the child; and
    3. Communicated with the child.
  4. The extent to which a parent has fulfilled (or failed to fulfil) their obligations to maintain the child;
  5. The likely effect of any changes in the child’s circumstances including the likely effect of being separated from either parent or other person (such as grandparent, sibling etc.) that the child had been living with;
  6. Any practical difficulty of the child spending time with or communicating with each parent;
  7. The capacity of each parent to provide for the needs of the child (including their emotional and intellectual needs);
  8. The child’s maturity, sex, lifestyle and background;
  9. If the child is Aboriginal or Torres Strait Islander:
    1. The child’s right to enjoy their Aboriginal or Torres Strait Islander culture; and
    2. The impact of any proposed parenting matters Order on the child’s right to their culture.
  10. Each parent’s attitude to the child and to the responsibilities of parenthood;
  11. Any family violence involving the child or their family;
  12. Any family violence order in place;
  13. Any other factor that the Court thinks is relevant.

“Presumption of Equal Shared Parental Responsibility”

Parental responsibility refers to all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

Under the Family Law Act 1975, there is a presumption that parents have equal shared parental responsibility, meaning they are to make major long-term decisions regarding their children together.

The presumption of equal shared parental responsibility does not apply in circumstances where a parent (or a person who lives with that parent)

  1. Has engaged in abuse of the children or other children; or
  2. Has perpetrated family violence.
Family Lawyer Central Coast

“Major long-term issues”

The Family Law Act 1975 defines major long-term issues as follows:

  1. education;
  2. religious/cultural upbringing;
  3. health;
  4. name;
  5. changes to living arrangements that make it significantly more difficult for the child to spend time with their non live-with parent; and
  6. any other long-term issue about care, welfare and development.

“Equal time”

If the presumption of equal shared parental responsibility applies, the Court must consider the following:

  1. Whether spending equal time with both parents is in the best interests of the child;
  2. Whether the child spending equal time with each parent is reasonably practicable; and
  3. If equal time is practical, whether an order should be made for the child to spend equal time with each parent.

When determining whether equal time is practical, the Court will consider:

  • How far the parents live from each other;
  • The capacity of each parent to implement parenting matters arrangements;
  • The parents capacity to communicate with each other;
  • The impact of an equal time arrangement on the child; and
  • Any other relevant factors.

“Substantial and significant time”

If an Order for equal time is not in the best interest of the child, the Court must consider whether the child spending substantial and significant time with their parent is appropriate.

Substantial and significant time means a child spends time with their parent that includes:

  • Weekdays;
  • Weekends/holidays;
  • Special occasions (such Christmas, birthdays, Mothers Day/Father Day); and
  • Days that allow the parent to be a part of their child’s daily routine.

What if parents agree about parenting matters arrangements (also known as child custody)?

If you and your ex-spouse agree about parenting you do not have to enter into any written agreement regarding the live with and spend time arrangements for your children. Brazel Moore Lawyers Central Coast do recommend that even parents who remain on friendly terms have a written agreement about the arrangements for their children. This ensures transparency and assists parents to avoid future conflict.

There are two ways to resolve parenting matters (child custody) disputes:

Parenting Plan

A parenting plan is a written agreement between parents that outlines how they will share the day-to-day responsibilities of caring for children, where children will live, when they will spend time with each parent and how parents will agree upon any major long-term decisions.

The downside of a parenting plan is that it is neither binding nor enforceable. This means there is no consequence if a parent breaches the parenting plan.

Consent Orders

Consent Orders are a written agreement that are approved by the Federal Circuit and Family Court of Australia. The Court must be satisfied that the proposed Consent Orders are in the best interests of the child. Consent Orders cover the same areas as a parenting plan. Once approved by the Court, Consent Orders, unlike a parenting plan, are binding and enforceable.

If a parent was to breach parenting Consent Orders, they could face the following penalties:

  • the current parenting order could be changed by the Court;
  • they could be ordered to attend a post-separation parenting course;
  • the other parent may be given “make up time” for any time they missed with the child due to the Order being breached;
  • they could be required to enter into a bond;
  • they could be ordered to pay legal costs;
  • they could be ordered to pay other reasonable expenses as a result of their breach of the parenting order;
  • they could be required to participate in community service;
  • they could be fined;
  • they could even be imprisoned.

What if parents do not agree about parenting arrangements (also known as child custody)?

Before a parent can commence Court proceedings, the parents must have attempted Family Dispute Resolution and must be in receipt of a section 60I certificate. Family Dispute Resolution is a type of mediation facilitated by a specially trained Family Dispute Resolution Practitioner (“FDRP”). The FDRP will try to assist parents to reach a final parenting agreement without the need to attend Court.

Following participation (or attempted participation) in Family Dispute Resolution, the FDRP will issue a section 60I Certificate which will state one of the following:

  1. one party refused to attend the Family Dispute Resolution;
  2. the FDRP was of the view the matter was not appropriate to conduct Family Dispute Resolution;
  3. both parties attended and made a genuine effort to resolve the dispute;
  4. both parties attended but one did not make a genuine effort; or
  5. Family Dispute Resolution began but the FDRP determined it was not appropriate to continue.

Following receipt of a section 60I certificate and before commencing Court proceedings, a parent must also send to the other parent a Notice of Intention to Start a Proceeding. This notice must state:

  • the issues in dispute;
  • the orders you will seek if a case is started;
  • a genuine counter offer to resolve the issues; and
  • a nominated time (at least 14 days after the date of the letter) within which the other party must reply.

So long as they have complied with the compulsory requirement to attend Family Dispute Resolution and have received a section 60I certificate, a parent, grandparent, child or any other person concerned with the care, welfare and development of a child can make an application for parenting Orders from the Court.

A parent may seek an exemption from complying with the compulsory requirement to be in receipt of a section 60I certificate in the following limited circumstances:

  • if your matter is urgent;
  • if the Court is satisfied there are reasonable grounds to believe that:
    • there has been child abuse and/or family violence by a party;
    • there is a risk of family violence by a party, and/or
    • there is a risk of child abuse if there were to be a delay in applying to the Court;
  • where a party is unable to participate effectively in Family Dispute Resolution; or
  • if your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

If you are seeking an exemption from filing a section 60I certificate, you will be required to file additional evidence in the form of an Affidavit – Non-Filing of Family Dispute Resolution Certificate.

If you need advice regarding your parenting (child custody) matter or any other family law matter, please contact Brazel Moore Lawyers on 4324 7699.

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