Parenting FAQs
Date: March 22, 2008
Authors: LAC Lawyers
Q. I have been divorced from my former husband for over seven years and although I am in employment he has been on the dole throughout and has a history of violence. Recently he approached me and suggested that as he was now in a stable relationship he would like to have contact with our son. What should I do?
A. In all cases involving children it always gets back to what is in the best interests of the child. Should your ex-husband have a history of violence involving both yourself and the child, custody would not be an issue and supervised contact is probably what would be allowed. This always gets back to working out a program which will be acceptable to both parties provided that the child will not suffer as a result.
Q. What effect with the new changes in the family law system have on children?
A. All children will have a right to know both their parents and to be protected from harm.
Q. What impact will the new changes have on parents?
A. Parenting is regarded as a responsibility which should be shared equally. This may not mean equal time; it could mean substantial or significant time spent by both parents with the child.
Q. Is it true that these new family law changes mainly focus on children?
A. Yes. These changes in the law are all about putting the needs and best interests of children first.
Q. What are the responsibilities of parents in this regard?
A. Parents bear the responsibility for their children’s physical and emotional wellbeing which should be share equally between parents provided they are not subjected to abuse or violence. Co-operation between separating or separated parents is an essential part of these reforms.
Q. Do these reforms mean that children will spent equal amounts of time with each parent?
A. No. The focus is both parents will have an equal role in making decisions about important issues such as schooling and health care.
Q. How do parenting plans and parenting orders sit with each other?
A. Basically it means that both the parents and the court need to have the best interests of the child in mind at all times when making decisions affecting the child’s wellbeing.
Q. How will the courts determine how much time the child spends with each parent?
A. Courts will determine this by reference to what is in the best interests of the child and other practical considerations. Time can mean equal time or substantial or significant time with both parents which may include day to day routine time not just weekends and holidays.
Q. When will these changes which focus on cooperatively resolving disputes come into operation?
A. It is expected they will start on 1st July 2007 when parents will be required to attend family disputes resolution sessions and be expected to make a genuine effort to resolve issues and disputes before taking a parenting matter to court.
Q. How does the court system accommodate these changes?
A. In parenting cases there will be change to a case-management approach with the focus being on the early detection and dealing with of violence and abuse.
Q. What will happen where there has been a breach of parenting orders?
A. The court will have wider powers to deal with people who breach parenting orders.
Q. What will happen where parents fail to fulfil their responsibilities?
A. Where parents fail to fulfil their major parenting responsibilities the courts will be able to take these matters into account.
Q. At what stage will this disputes resolution mechanism come into play?
A. Separating parents will be required to undertake some form of disputes resolution for parenting disagreements before proceeding to court. Parents will have access to the new family relationship centres or may attend another accredited service or practitioner in this regard.
Q. Will it be compulsory for separating couples to attend a family relationship centre?
A. No, but the law will require separating parents to attempt disputes resolution before taking a parenting dispute to court.
Q. What does the court bear in mind when considering what is in the best interests of the child?
A. That the children know both their parents and to be protected from harm each being given equal weight.
Q. Are there any other considerations which are taken into account?
A. Yes. Additional consideration is given to views expressed by the child, the nature of the child’s relationship with his/her parents and other important persons such as grandparents, relatives and extended family members as well as the practical difficulties of a child having contact with a parent(s).
Q. Are children entitled to independent legal advice where a matter proceeds to court?
A. Yes. The court may order an independent lawyer be engaged to represent the best interests of the child and to inform the court of their independent view in this connection.
Q. What is a parenting plan?
A. A parenting plan is an agreement worked out between a child’s separating parents which can take any form provided it sets out the parenting arrangements for children. It must be produced in writing and dated and signed by both parents.
Q. Can a parenting plan be changed at any time?
A. Yes, as it is voluntary it needs to have the agreement of both parents. It should be borne in mind that parenting plans are not legally enforceable.
Q. Will the court have any regard to parenting plans if they are not legally enforceable?
A. When the court is making a parenting order in relation to a child they are required to consider the terms of the most recent parenting plan and to consider the extent to which both parents have complied with their obligations in relation to the child.
Q. Where a court has made a parenting order with respect to parenting arrangements can the parents change it without having to go back to court?
A. Yes provided the court order does not prohibit this.
Q. Will family disputes resolution apply in all cases?
A. No. It will only apply to parents who want to go to court over a parenting issue where it is compulsory unless they fit within the listed exceptions or where they have already agreed on parenting arrangements.
Q. How does the court know that compulsory family disputes resolution has already taken place?
A. This is because a certificate is required from an accredited family disputes resolution practitioner before the court can hear an application for a parenting order. Basically the certificate states that family disputes resolution did not work for a number of reasons.
Q. How will family violence and child abuse be dealt with under the current changes?
A. Family violence and child abuse will not be tolerated. This is the fundamental principle of the new reforms. Family violence includes actions or threats by a person against any family member or their property including witnessing such actions or threats. Fear and the apprehension of violence are addressed. A person must reasonably fear for or be apprehensive about their personal wellbeing or safety. The courts are required to act promptly in cases of violence or abuse. State and territory agencies are expected to investigate allegations of violence and abuse without delay.
Q. Where parties to a marriage/relationship have separated and there are children of the relationship, does the parent with whom the child does not reside have a responsibility to maintain these children financially?
A. Yes they do. Please see your Family Law solicitor who will be able to advise of the duties of parents in relation to child maintenance, and the procedures in relation to same.
Q. Who can apply for child maintenance?
A. Child maintenance can be applied for by:
(i) The child,
(ii) either or both of the child’s parents,
(iii) the child’s grandparents, or
(iv) any person concerned with the care, development or welfare of the child.
Your lawyer can advise you as to the procedures and costs of applying for child maintenance and as to the aspects which the Court takes into account in making Orders for child maintenance.
Q. Can a child support assessment by the Child Support Agency be changed?
A. Yes. You can request that the Child Support Agency review the amount of child support paid by you or your ex-partner at any time.
Q. If a parent paying child support through the Child Support Agency has recently lost their job. What can they do?
A. Advise the Child Support Agency of this fact immediately. The Child Support Agency will advise that parent of their options which may mean they pay less child support.
Q. Can a parent with whom the children do not live be ordered to pay child maintenance once the children turn 18?
A. Yes. There are circumstances in which the Court can order a parent to pay maintenance for a child of the relationship who is over 18. These include children with physical or mental disabilities. Please speak to your family Lawyer who can advise you of your rights in relation to this issue, as well the procedure involved.
Q. Can a lesbian co-mother or a gay co-father seek parenting orders in relation to a child?
A. Yes they can, under the Family Law Act 1975. Please contact your solicitor for advice.
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