Family Law - Who gets the kids?

Date: August 14, 2006

Authors: LAC Lawyers

The vast majority of separating couples who have children under 18 are generally able to work out their own arrangements in relation to the amount of time their children will spend with each parent.  They sensibly recognise that the interests of their children are best served by them spending quality time with both their mother and father, leaving a degree of flexibility in the arrangements and able to discuss any associated problems without undue friction.  In considering what arrangements are appropriate for their particular circumstances, such couples have no doubt been guided by long established practices.  For example, courts have traditionally ordered in the past, where parties have not agreed otherwise, that either the father or the mother (usually the latter) have custody of the children and the other partner have access or contact on alternate weekends and half school holidays.  Rarely in our experience did parents entertain the modern notion of shared parenting and children were considered by most experts as preferred nurturers of their children.  This mind set has now been shattered by the changes to the Family Law Act that came into force on 1 July 2006.

The changes give effect to what many perceived to be a bias against fathers in the past, but further recognise a shift in community attitudes in looking at separation from the childrens’ perspective.  We have heard it said: “They’re my kids and I will decide what is best for them.”  No longer can this be the case.  We have now entered the realm where each parent must share the duties and responsibilities, and the joys of bringing up their children, in separate households.

Ideally, under the new regime, children should be spending equal time with each of their parents.  For practical purposes such an arrangement will not always be the best option, for reasons such as the distance between the residences of each parent and the ability to communicate with each other.  Alternatively, the children should spend substantial and significant time with each parent, which would include days during the week and on weekends and attendance at significant events, in order that the child has a full range of experiences with each parent.  A primary consideration of a child’s best interest in the Act is that the child benefits from having a meaningful relationship with both parents.

The notion of parental responsibility is essentially unchanged, although redefined.  This is the concept that both parents have overall responsibility for the children, despite the separation.  Traditionally, decisions about day to day matters such as food and clothing are to be made by the parent with whom the child currently lives and any longer term issue such as the child’s health, where he or she is to be schooled or religious upbringing are to be made jointly after discussion between the parties.

Where separating couples need assistance to resolve any issue regarding children or indeed cannot agree at all, then the federal government is in the process of providing a free counselling and mediation service (up to 3 hours free)  in the form of shop front Family Relationships Centres.  Unfortunately these are only available at Penrith and Caringbah in the Sydney area at this time, but further Centres are planned over the next 2 years and a telephone service is also available.  Parties are encouraged at these Centres to agree, write up and sign a Parenting Plan containing all details of the living arrangements for their children and any other issue that is likely to arise.

We strongly recommend that your lawyer be consulted at or prior to the time of signing any proposed parenting plan to avoid any future problems arising from a less than thorough drafting of the plan.  In many cases it will be necessary to provide for a variety of contingencies, such as overseas travel, which the experience of your lawyer in these matters can bring to your attention.  This would also have the benefit of averting any need for a court to intervene to resolve any unforeseen difficulty in the future.

When negotiations have failed, the Family Court may be called upon to make a Parenting Order, adopting the principles already outlined ie. that the Court must consider equal time for each parent or at least substantial and significant time.  Every case is different and, to allay concerns in those few intractable matters, the overriding consideration for the Judge in the case is that the best interests of the child or children are of paramount importance.  In fact, it is clearly written into the law that children are entitled to be protected from violence abuse or neglect when the Court is making parenting orders and the usual presumption of joint parental responsibility is rebutted in such cases.  Allegations of violence or abuse are dealt with at an early stage of the Court’s proceedings and may result in a costs order against a party making any false allegation.

It is far too early to see how effective these changes will be in improving the lives of children to separated couples or indeed whether or not the general public, without judicial intervention, will take up on the government’s lead.  Clearly, many will prefer the old ways, for all their faults, but over time, after decisions have been handed down by the Family Court on aspects of the legislation, the mind set will likely change.

As always, whether or not couples have been able to come to some agreement regarding the children, it is better to seek legal advice to ensure you rights are protected. For any family law enquiry feel free to contact LAC Lawyers.

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