Family Law and Parenting - Questions & Answers (part 2)

Posted on 08 August 2011

Question - We have separated, what are my rights in relation to my child?
Answer - There is a misconception that parents have rights over their child however, the Family Law Act does not give parents any rights over their child. The law focuses not on the parents rights of ‘ownership’ of their child, rather it focuses on the child’s individual rights to have a meaningful relationship with both parents. The question the law seeks to answer in deciding what the ‘custody arrangement’ will be is what parenting arrangement will be in the best interests of the child. The Courts focus on the rights of children and the responsibilities of parents.

Question - Is ‘custody’ the same as ‘parenting arrangement’?
Answer - Yes. Some time ago the Family Law Act was changed to move away from ‘ownership’ language to language which focuses more on the child rather than the parent. Now, instead of saying “I have custody of my child” we say “The parenting arrangement is that the child lives with me”.

Question - Does the Family Law Act say that my child must spend equal time with both parents?
Answer - The primary consideration is always the ‘the best interests of the child’; in other words "the welfare of the child is the paramount consideration". To decide what this is, we first must consider whether shared parenting is suitable and also equality in shared parental responsibility. There is a general misconception that the law says that parents must have equal time with their children if they separate. Although this may be a suitable parenting arrangement for some, the general idea behind the Act is not to give both parents the right to spend equal time with their child but to promote equal shared parental responsibility and the child spending more shared time with each parent; shared time does not always mean equal time. We must look at all circumstances of a particular situation and then decide what arrangement will be in the best interest of the child.

Question - Is Shared Care the same as Shared Parental Responsibility?
Answer - No. ‘Shared Care’ relates to how much time the child spends with each of his/her parents; the Family Law Act 1975 communicates the rights for children to spend significant time with each parent and to otherwise be able to communicate with them in a full and meaningful way. ‘Shared Parental Responsibility’ relates to the duties, powers, responsibilities and authority which, by law, parents have in relation to their child. This includes (but is not limited to) making decisions relating to the care, welfare and development of the child. The Family Law Act 1975 presumes that each parent shares parental responsibility in relation to their child unless there are circumstances whereby that responsibility should be more specifically allocated to protect the child’s best interests.

Question - We can’t agree on a parenting arrangement (custody) so what next?
If you have tried to negotiate with the other parent privately, the next step is to seek some legal advice from a family law solicitor to make sure you are both on the right track. It is important that you educate yourself as to what the law says is an appropriate arrangement to make sure that you are both negotiating realistic proposals.

The family law solicitor may then, depending on your circumstances, recommend that you both attend mediation with a Family Disputes Resolutions Practitioner. There are many organisations which provide this service including the Government funded Family Relationships Centres who provide mediation on a sliding scale of fees or private Family Dispute Resolution Practitioners. You should discuss with your family law solicitor which service would be most suitable for your situation. Before starting court proceedings, you will need to obtain a certificate proving that you attempted to resolve your dispute through mediation (unless you qualify for an exemption) before starting court proceedings. This step may assist you both to reach an agreement and therefore avoid costly, lengthy and stressful court proceedings. Of course in some situations, mediation may not be suitable or you may not be able to reach an agreement; the only option then is to start court proceedings to let the Court decide what the best parenting arrangement for the child is.

Question - How are children given a “voice” in Family Court proceedings and how are their interests protected?
Answer - A “Separate Representative” or “Child Representative” can be appointed as an Independent Legal Representative for the Child (ICL). The ICL provides unbiased and objective representation for the child. The court may make an order for separate representation on its own initiative or either party can apply to have a separate representative appointed. As ICL’s are appointed via Legal Aid, the circumstances must satisfy certain requirements before a Court will appoint and ICL. We can provide you with advice and assistance regarding parenting orders and whether or not and ICL can be appointed in your matter.

Question - What can I do if the other parent is breaching court orders and not complying with the parenting arrangement?
Answer - Your remedy is to file a Contravention Application with the Family Court. You will receive a Hearing date from the Court and the Orders will likely be enforced on that date. This is not always and easy process therefore we recommend that you seek legal advice prior to starting Contravention proceedings.

Question - I have been offered a job in QLD, can I take my children with me?
Answer - You should firstly speak with your former partner to see if you can reach an agreement between you. If you do not reach agreement with your former partner and you move away without any Court orders, the other parent may seek assistance from a Court and if they do, you may be required to return to NSW until the Court has considered your case and decided what would be in the best interests of the child.

If there are existing Court orders in place, you may be breaching those orders by taking the children with you. Contact us before you move so that we can assist you in making the appropriate application to the court for relocation of the children.