Following a separation, most parents manage to agree on the arrangements for the future care of their children. But some couples simply can’t agree—and end up in the Family Court.
If they are headed to the Court, it’s very important that they understand the basic provisions of Family Law; what the Court expects of them as parents and what a judge is likely to do.
Basically, there is a “legislative pathway” which the Court follows. This legislative pathway has six key provisions or “stepping stones”. Understanding them is the key to coming to a good agreement (and staying out of the Court in the first place, if possible). They are set out in Part 7 of the Family Law Act
The first stepping stone is section 60CA, which says that a Court must regard the best interests of the child as the paramount consideration.
The second stepping stone is in section 60B which specifies the “objects and principles” which will guide the Courts in working out the best interests of the child. These emphasize the rights of the child to know and be cared for by both their parents and emphasize the importance of both parents having a meaningful involvement with their children and sharing in their care and decisions. But this is always subject to the need to protect children from violence, neglect and abuse.
The third stepping stone is section 60CC(2), which specifies that in determining the child’s best interest, the Court must consider two “primary considerations”. The first is that the child has a “meaningful relationship” with both parents, and the second is the need to protect the child from violence and abuse. If there is a conflict, the need to protect a child must be given greater weight.
The fourth stepping stone is in 60CC(3), which states that in determining the child’s best interests, the Court must consider some 15 “additional considerations” as appropriate. These include any views expressed by the child, and the parties’ track record of being involved in the care and support of their children in the past, as well as other considerations.
The fifth stepping stone is 61DA, which requires the Court to consider whether the parties should have “equal shared parental responsibility” for making major decisions for the child. The Court usually makes a presumption that parents should have such equal decision making responsibility, except if there is violence involved.
The sixth stepping stone (in 65DAA) is that the Court must then consider whether the child should spend “equal time” with each parent, if this is “reasonably practical”. If not equal time, then the Court must consider the child spending “substantial time” with each parent if this is reasonably practical, which is more than just weekends and holidays and includes midweek time.
Most parenting disputes are no longer about winners and losers, but rather how the parents can share the care of their children equally or substantially. There are exceptions to this, where parents live at a distance or certain serious issues arise. But if separating parents take the time to understand the provisions in the Family Law Act, and get some good legal advice to help them understand their rights, responsibilities and obligations, they are then in a better position to work out good resolutions for their children’s care which put their children’s best interests first.