Children have Rights
The end of a relationship is usually a very distressing and confusing time for those involved. The Family Law Act (1975) sets out the law regarding children’s rights and parents’ responsibilities when relationships breakdown. No Act of Parliament can solve the actual emotional pain and financial distress often associated with a relationship breakdown.
Many parents are able to make their own arrangements for their children after separation. They don’t need to obtain court orders describing which parent will be caring for the children and at what times. For some people, however, this is not possible. Separation can and often is accompanied by distrust and conflict.
When working out post-separation arrangements for your children, the following matters are important:
• You and your former partner’s living arrangements
• The distance between your respective homes
• Your work commitments
• The children’s ages and any views they may have expressed
• Activities the children may be involved in
• Cultural considerations
• Extended family relationships
• Arrangements for special occasions and holidays This list refers to some of the usual matters the Court considers when determining the best possible arrangements for children following separation.
What if you can’t agree?
If agreement cannot be reached, parents and family members are generally required by law to participate in mediation before commencing Court proceedings. There are some exceptions to this. Mediation is not mandatory in circumstances where there has been family violence or child abuse. If there is a threat to abduct the children or move them interstate you should obtain legal advice urgently. In these circumstances it may be possible to obtain an Order from the Court urgently without first participating in mediation.
The benefits of mediation
Mediation is an excellent way in which you can meet with your former partner in a controlled environment. A Family Dispute Resolution Practitioner controls the process. Parties are able to express their opinions safely and respectfully. Unlike Court proceedings, Mediation is an inexpensive process. It is not combative and is far less stressful than going to Court. Mediation allows parents to make decisions about their children, not Judges. There are several family mediation services in the Geelong region.
If you reach agreement at Mediation a parenting plan can be drawn up and agreed. If you wish to formalise the parenting plan, Consent Orders reflecting the plan can be prepared and filed in the Court. After Mediation you will be provided with a certificate that enables you to file proceedings in Court. The certificate is valid for 12 months. A certificate will also be provided if the Mediation Centre considers your circumstances unsuitable for Mediation or where Mediation has been unsuccessful.
The Family Law Act
The law relating to the parenting of children is set out in the Family Law Act. Although there are a few exceptions, the general rule is that children have a right to know and be cared for by both parents. Children have the right to spend time regularly and communicate with both of their parents and significant other people, such as grandparents and other extended family members. The law states that parents should share duties and responsibilities relating to their children and that children have a right to enjoy their culture. Children have rights, parents have responsibilities.
The underlying purpose of the Family Law Act is to ensure that children can continue to have meaningful relationships with both of their parents and significant other people after separation. The Act also promotes the protection of children from harm and abuse. When making decisions about children the Court must always consider what is in the best interests of the child.
Is one parent favoured over the other?
The Court does not favour one parent over the other when making orders. The Family Law Act recognises that both parents are equally responsible for their children. This means that very important decisions about a child’s health, education, religion and other big decisions are to be agreed by both parents. Day-to-day, small, everyday decisions can be made by the parent with whom the children are with.
If the Court believes that living equally with both parents is not the best arrangement for the child it will usually make Orders that enable the child to spend substantial and significant time with the parent the child does not usually live with. This is usually more substantial than every second weekend and holidays. The Court seeks to involve the non-resident parent to be involved in all aspects of their child’s life and not just weekends.
In circumstances involving family violence or child abuse, the Court will usually not make Orders providing for these types of arrangements. The Court must make Orders that are in the child’s best interests and which endeavour to protect the child from harm.
Family Violence and the Family Law Act
The Family Court places great weight on the need to protect children from harm, abuse, neglect or family violence. That is more important than the benefit to the children having a meaningful relationship with both parents.
A child is exposed to family violence if they see, hear or experience the effects of family violence. This can include the following:
A child overhearing threats of violence from one family member to another A child seeing or hearing an assault by one family member on another family member and being present when police or ambulance attends at their home after one family member has assaulted another Family violence can include an assault, stalking, sexual assault or sexually abusive behaviour, damaging property, taunting, making threats, shouting abuse, killing or injuring animals, financial abuse, or depriving a family member of their freedom. And again, this list is not exhaustive.
If the Family Court considers that there is a risk and there are safety concerns for a child, the Court will consider what arrangements are in the best interests of the child. The Court can Order that an offender not spend any time with the children in some circumstances involving family violence. Supervised Contact or very limited Contact for a few hours during the day in a public place may be Ordered. Often, the perpetrator of family violence may be required to complete parenting courses (and/or seek other treatment) to ensure the children are safe and to re-establish and improve their relationships with their children.
If Family Law proceedings are commenced, it is important to tell the Court of the existence of any family violence intervention order. It will need to know the circumstances in which the Order was made to ensure that it can make Orders that are in the children’s best interests.