Tag: family law specialist

The Family Act 1975 ensures that children maintain their relationships with both parents and guarantees both parents the right to spend time with their children, all in the best interests of the children. One of the major objectives of the Act is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.

Today there is an assumption of shared parental responsibility between parents for their children. This responsibility includes all of the “duties, powers, responsibilities and authority” which parents have by law regarding their children. Section 61DA states that when a court makes a parenting order, it “must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. While the child may live primarily with one parent, both parents have a role in his or her ongoing, daily life.

“Equal” time v. “substantial and significant” time

If parents have shared responsibility for their children, they should also have shared time with their children. But how much time is the right amount? How much is fair to each parent? And what is reasonable to expect from the parents and from the children?

The law requires the court to first consider providing “equal” time to each parent.  A schedule with equal time might involve children living with the mother one week, then the father the next week. In some families, the children may spend Sunday through Wednesday at their father’s home and Wednesday night through Sunday morning with their mother. The court weighs two factors in order to determine if the child should have equal time with each parent. The court must ask if spending time with each parent is in the child’s best interests and is “reasonably practicable“? A court might very well determine that it’s best for the child to have equal shared time with each parent but since they live 300 miles away from each other, this is not feasible. Only if both of the above criteria are met can a court consider giving a parenting order that grants equal time with the children.

If there is (or will be) a court order giving shared responsibility to both parents, but the court does not grant an order for equal time, the court can consider giving an order for “substantial and significant” time. Again, the considerations for giving this type of order are whether this is in the best interests of the child and whether it’s practical.

If there is a conflict between what is good for the child and what is fair to the parents, the child’s welfare comes first.

What is “reasonably practicable”?

The court will weigh a number of issues to decide if it is practical for the parents to have equal time or substantial time with the children. These include:

• The distance between the two homes. If one parent lives in Perth and the other in Sydney, equal time will be difficult to establish.
• The parents’ present and future ability to work out an arrangement for the children to spend equal or substantial time with each parent. For example, in a case in the United States

What is “substantial and significant time”?

The law also clearly delineates what substantial and significant time is, making it clear to the courts what the parenting services order should include and letting parents know ahead of time what is to be expected. Significant time goes beyond a nice weekend together once a month, or dinner every Wednesday night. Parents who are given substantial and significant are expected to:

•  spend time with their children on days that fall on weekends and holidays as well as regular weekdays;
• be involved with the children’s daily routine;
• be present at occasions and events that are significant to the children (school graduation, a visiting day at camp or school, dance recitals, end-of-year sports games, etc.).

Similarly, the parent needs to include the children in events and occasions he or she considers significant (special events at work, promotions, birthdays).

The court can also consider many other factors in determining if the children are spending substantial and significant time with the non-custodial parent.

See the child custody blog for recent cases and legislative changes on issues of parenting and shared time.

The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

It is a criminal offense to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine or two years imprisonment or both. Where the breach itself is an act of violence and the defendant is at least 18 years of age, the defendant will likely be sentenced to a gaol term.    

The CSA requires proof that a paying parent is a biological or adoptive parent of a child. Proof could be the parent’s name on the child’s birth certificate. The CSA will only issue a child support assessment to a person if proof can be provided that the paying parent is a biological or adoptive parent of the child.

If you cannot provide acceptable proof, you may need to take court action and have DNA testing done. Seek legal advice if you need proof of parentage.

The Family Law Act provides for binding financial agreements to be made between parties to a marriage, a de facto relationship, or a same-sex couple. These agreements can be made before, during or after the end of the marriage or relationship. Parties entering into a relationship agree on what will happen in the event that they separate. Parties entering into a second relationship or with substantial assets often like the protection of a financial agreement.

The courts in Australia are the last resort for settling a property dispute between spouses.  Even if you and your spouse can’t come to an agreement, you need to show the court that you’ve tried to reach an agreement through some type of alternative dispute resolution.  This is called a “pre-action procedure”.

Pre-action procedures are also aimed at determining which disputes can be settled out of court and which really require the court’s intervention.  While you might not be able to come to an agreement about everything, you might agree on some issues (who gets the house) and only have to bring a small number of disputes to the court (how is the debt divided).

There are several steps to the pre-action procedure:

1. Inviting the other side to participate in dispute resolution, such as family counseling, mediation or arbitration.
2. Agreeing on a type of dispute resolution service.
3. Attending the dispute resolution and making a genuine effort to resolve the problem.
4. Give written notice to the other side if no agreement can be reached (or the other side refuses to attend the meeting) of your intention to file with the court.
5. Replying to the written notice if you are on the receiving end.

Consult with an experienced Family lawyer about the rules and requirements in pre-action procedures to ensure that you meet all of your obligations.