(c) 2017-2019 by Joseph Petersen. All rights reserved.      Legal Notices and Disclaimers

Parenting

What kind of parenting agreements are there?

The law recognises two main types of parenting agreements:

  1. Parenting Plans are signed, written, dated agreements made between parents that govern the parenting arrangements. Because these do not have to be witnessed or drawn up by third parties (but you can do so if you wish) they have the benefit of being flexible and relatively easy to create. If a parent should break the terms of the parenting plan this can be used in evidence in later court proceedings; however, you cannot take action for a breach of a parenting plan itself. 
     

  2. Consent Orders normally do not require actual attendance at Court and are organised by lodging documents with the Family Court of Australia. Given that there are technical requirements it is wise to obtain independent legal advice before entering in to consent orders. However, a breach of a parenting order can result in contravention proceedings, where a Court can force compliance and issue sanctions against a parent who breaks the order (such as costs orders or, in the most severe cases, criminal penalties including jail).  The main difficulty with consent orders is that any large charge requires a fresh application to the Court - and it is not automatic that a Court will allow changes even if both parents agree.

I need help reaching a parenting agreement. What options are there?

Australian law requires that before any parenting matter can proceed to Court (with limited exceptions) the parents must first proceed to parenting mediation - properly called a Family Dispute Resolution Conference (or FDR Conference). 

FDR Conferences can be with or without solicitors, and can be done through community organisations or through private accredited mediators. However, we do recommend having legal advice if you are considering binding court orders, or if there are issues around the safety of the children.

Best interests of the child

The fundamental rule in all parenting matters are that the decisions must be in the best interests of the child. This is paramount – and so, is often called the paramountcy principle.

 

However, it is not the only consideration. Courts wish to ensure that people comply with parenting orders; and also, that adult Australians have the freedom to move around Australia as they wish. However, in most parenting matters, these are secondary to the best interests of the child.

 

But what does the "best interests of the child" actually mean? What does a court consider, and need evidence about? These are listed in Section 60CC of the Family Law Act, the legislation which applies to parenting nationwide. (Readers in Western Australia should seek specialist advice due to different processes in your state. However, the basic concepts are the same in your state.)

All factors apply in considering a child’s interests. However, not all of them will be relevant, or equally important, in every case.

Two factors are considered “primary considerations”:

  • “the benefit to the child of having a meaningful relationship with both of the child’s parents”

  • “the need to protect the child from physical  or psychological harm, from being subjected to, or exposed to, abuse neglect or  family violence”.

There is also a long list of other factors. Simplified these include:

  • Child’s views, weighted for maturity and understanding – that is, how well they understand matters and the basis for their wishes. There is no set age about when a child’s views are given great weight, age 12 or otherwise.

  • Relationships between the child with their family (including broader family and especially siblings) and significant others involved in their lives, and their carers' capacity to provide care (physically, emotionally, financial and intellectually, amongst others);

  • Proposals being put forward by the parents, and whether these may cause separation between siblings or from parents / family members / significant others (or other life circumstances that are likely to cause separation.) The Court is also required to look at the practical difficulty  and expense of a child maintaining time or communication with a parent, and whether that will substantially affect the ability to maintain personal relations and direct contact on a regular basis;

  • Parental involvement in decision making, spending time and communicating with the child, meeting their obligations to maintain a child, and their attitude to parenting, attitude to the child and the responsibilities of parenthood

  • Culture and Characteristics of the family, including maturity, gender,  background and traditions, and Aboriginal or Torres Strait Islander culture and what effect a proposal will have on the child’s ability enjoy that culture with people who share it;

  • Family Violence including any history involving the child or  child’s family, and any family violence orders and the evidence or findings of another court in those cases;

  • Finality and trying to ensure that any outcome is the end of litigation between the parties; and,

  • Any  other fact or circumstance that the court thinks is relevant.

 

What rights do parents have?

None. However, read under Parental Responsibility below.

What rights do non-parents have?

Also, none. However, the Family Law Act specifically refers to grandparents, and also to any person involved in the care welfare and development of a child. These people have the ability (“standing”) to bring an application for parenting orders. In certain cases, this can result in that person obtaining an order that they be a person with Parental Responsibility for a child.

What rights do children have?

The Family Law Act is child-focused. The concern is not whether adults or parents should have rights over a child, but instead that the child is a human being and have their own inherent rights. These include:

  • The right to know and be cared for by both their parents, irrespective of  whether they are or have been in a relationship;

  • The right to spend time on a regular basis with their parents and significant others, including relatives;

  • The right to enjoy their culture (including for Aboriginal / TSI youth, the ability to maintain a connection, have support and explore the full extent of that culture).

 

However, even these rights are subject to the best interests of the child.

 

Parental Responsibility

Instead of having rights, the Family Law Act talks about the responsibility of parents to make the decisions about the major-long term issues in a child’s life. This includes making decisions about:

  • Education (for instance, where your child attends school, what type of education their receive, etc.)

  • Health (and giving consent on the child’s behalf for medical treatment, diagnosis or intervention, including psychological or dental matters)

  • Religious or  Cultural upbringing (for instance, whether they observe a certain religion, or cultural activities, particularly for Aboriginal / Torres Strait Islander youth)

 

Importantly – parents are to make informed decisions. If a parent has parental responsibility to make educational decisions, they are authorised to receive information from a school (such as report cards, attending parent-teacher  or parent-invite events, receive newsletters, photo order forms, etc.

 

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