To many of you with children, the pertinent question that arises with a separation in a marriage or de-facto, is who the child will go to; and whether you as a parent are entitled to them solely.
The Family Law Act 1975 deals with this through parenting or child access orders. If these Orders are not consented to, the matter proceeds through a Family Relationship Centre to be resolved. If it still cannot be resolved, the matter proceeds to a Family court.
1. Section 64B Family Law Act:- “parenting order is an order dealing with a person or persons whom a child is to live; the time a child is to spend with another and the allocation of parental responsibility for a child, the communication a child is to have with another person or persons and the maintenance of a child”
2. Section 60B of the Family Law Act:- holds that the court holds the child’s best interests and welfare as paramount. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives; protecting children from physical and psychological harm; they receive adequate parenting to receive their full potential and parents meet their responsibilities. In regards to Aboriginal children, they must also maintain a connection with their culture”
3. Section 60CC Family Law Act:- states that child’s best interests are:-
(i) the benefit of having a meaningful relationship with both parents; and
(ii) need to protect the child from physical and psychological abuse.
4. The child (if old enough) is able to express any views that the court may deem necessary in arriving at any orders.
5. The effect of the separation on the child is also to be taken into account. Stability in a residential environment that can provide for the child on a socio-economic basis is very much considered by the court.
There are various other factors of which a Family lawyer is able to walk you through step by step. These are additional considerations, of which tie into the child’s best interests.
6. Section 61DA Family Law Act:- Holds that when a family court order is made, it is in the best interests of the child for a presumption of equal shared responsibility. This presumption does not apply if there are reasonable grounds that a parents of the child has engaged in abuse of the child or family violence.
7. Section 65DAA Family Law Act:- Court will consider a difference between equal time or substantial and significant time with each parent. A child will be taken to spend substantial and significant time with a parent only if: the time the child spends with the parent includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays; and the time the child spends with the parent permits the parent to be involved in the child’s daily routine and occasions that are of particular significance to the child.
Keep in mind that in coming to choosing between equal time, or substantial and significant time, the court will take into account how far apart the parents live; parents current and future capacity to arrange for equal time, difficulties that might arise in that kind of arrangement, the impact that arrangement would have on the child and any other matters as the court considers relevant.
Always remember that the Family Law Process is one that is involving and at times, in situations of dispute, will require numerous steps. Having a competent, skilled and amicable Family Lawyer is crucial in the maintenance of your child’s welfare and upholding your responsibilities as a parent.
