It may not be straightforward after a marriage or de facto relationship: who the children will live with and how much time they will spend with the other parent.
Suppose you find yourself unable to agree with your former partner about where the children live or how much time the children spend with the other parent. In that case, Yarra Family Lawyers can help you negotiate arrangements that are in both your best interest and your child’s.
At Yarra Family Lawyers, we understand that negotiating children’s arrangements can be painful and requires care and delicacy. We adopt a child-focused approach to all children’s matters, and we endeavour to alleviate your stress and anxiety by remaining calm and considered throughout your matter.
Commonly asked questions
What is Parental Responsibility?
The Family Law Act 1975 applies a presumption that it is in a child’s best interests for both parents to have equal shared parental responsibility.
Equal Shared Parental Responsibility differs from how much time a child spends with each parent. Having Equal Shared Parental Responsibility means that both parents have a say in major long term decisions for their children.
Major long-term decisions include a child’s education (what school do they attend), a child’s religion (do they practise a particular religion), a child’s name, major medical decisions, and where a child lives.
Day to day decisions such as what a child eats and whether they take a Panadol for a cold are generally not considered major long term decisions. A parent does not usually need to consult with the other parent before making day to day decisions for a child.
Suppose parents are unable to agree on a major long term decision. In that case, they may need to engage in dispute resolution or a lawyer to help them negotiate this decision.
What is a Section 60i Certificate, and why do I need one?
A Section 60i Certificate is a document issued by an accredited Family Dispute Resolution Practitioner after Family Dispute Resolution.
It is a requirement of the Family Law Act 1975 that parties must attempt to resolve their parenting dispute by way of Family Dispute Resolution before having the option of initiating proceedings in the Federal Circuit and Family Court of Australia. This legislation intends to avoid including children in litigation where it is avoidable and to avoid lengthy delays in the Federal Circuit and Family Court of Australia due to the number of cases being heard at any given time.
There are exceptions to the Section 60i rule, including matters where there is urgency, family violence or a risk of harm to the children.
There are five types of Section 60i Certificates that can be issued; these are:
- the parties did not attend Family Dispute Resolution because one party failed or refused to attend
- the parties did not attend Family Dispute Resolution because the Family Dispute Resolution Practitioner considered it inappropriate in the circumstances (this could be due to family violence or there being a risk of harm to either of the parties or the children)
- the parties attended Family Dispute Resolution, and both made a genuine attempt to resolve the dispute
- the parties attended Family Dispute Resolution, and one or both of the parties did not make a genuine attempt to resolve the dispute
- the parties attended Family Dispute Resolution, but the Family Dispute Resolution Practitioner did not consider it appropriate to continue the Family Dispute Resolution.
To read more about the Pre-Action procedures for parenting cases in the Federal Circuit and Family Court of Australia, follow the link below to the Court’s website:
https://www.fcfcoa.gov.au/fl/pubs/pre-action-parenting
How are Parenting disputes determined in Court?
If a parenting dispute is unable to be agreed upon during family dispute resolution, or the circumstances of the case make the matter urgent or inappropriate for family dispute resolution, you will likely need to ask the Federal Circuit and Family Court of Australia to assist with resolving the dispute.
The Family Law Act 1975 prescribes a number of factors that the Court must consider when resolving a parenting dispute. Before making any orders regarding a child, the paramount consideration is what is in the child’s best interests.
How does the Court determine what is in the child’s best interests?
There are two primary considerations that the Court must take into account when determining what is in a child’s best interests, those primary considerations are:
- the benefit of a child having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are as follows:
- the views of the child and how much weight should be given to those views given the age and maturity of the child;
- the nature of the child’s relationship with each parent and any extended family such as grandparents;
- the extent to which each parent has taken the opportunity to participate meaningfully in a child’s life such as participating in major long term decisions that affect the child, spending time with and communicating with the child;
- the extent to which each parent has fulfilled their obligations to maintain the child;
- the likely effect that a change in circumstance will have on the child including the likely effect on the child of any separation from a parent or other significant person;
- the difficulty and expense of a child spending time with and communicating with a parent;
- the capacity of each parent to provide for the needs of the child;
- the maturity, sex, lifestyle and background of the child and either of the child’s parents;
- if the child is Aboriginal or Torres Strait Islander;
- the attitude towards the child and to the responsibilities of parenthood, demonstrated by each of the parents;
- any family violence involving the child or a member of the child’s family; and
- whether there is a family violence order in place.
The above list of considerations are not exhaustive and there may be additional considerations that the Court takes into account when determining what is in the child’s best interests.
If you have a parenting dispute, we are here to listen and help. Contact us today for a free 30 minute initial consult