06 Mar What are the new laws about children?
What are the new laws about children?
Changes to ’the Family Law Act 1975′ made in 2006 include:
- the introduction of a new presumption of shared parental responsibility
- a new way for the court to determine what is in the best interests of a child
- a focus on parenting plans to reach agreement over children without having to attend court
- an emphasis on Family Relationship Centers to provide advice and help parents reach agreement outside the court system.
Who does it apply to?
The new laws apply to any parenting orders made on or after 1 July 2006, regardless of when the application first went to court.
The new laws do not amount to a ‘changed circumstance’ that parents can rely on to argue that their existing order should change.
What are Parenting plans?
There is a new focus on parenting plans to reduce the amount of time separating parents spend in court.
Parenting plans are agreements reached between parents outside the court system and are different from parenting orders which are made by the court and are enforceable.
Parenting plans will generally be written and signed agreements between parents, setting out the day-to-day arrangements for their children and is largely based on trust that there will be cooperation
Where the child lives, what time the child spends with each parent, how the plan can be altered and how future decisions will be made can all be included in a parenting plan.
The plans are voluntary and they must be made free from threats or coercion.
Your lawyer will advise you on entering into a parenting plan and will also give you information about where you can get help in developing such a plan if you do not wish to have a legally binding agreement or order.
The presumption of shared parental responsibility
The new laws introduce a presumption of equal shared parental responsibility when parenting orders are made. But what does this mean?
It does not mean “50:50 joint custody”. Instead, the presumption relates to the decision making about major long-term issues by both parents, for the benefit of the child.
The presumption of equal shared parental responsibility applies in all cases except if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.
This means that unless the exception applies, the court must presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility for the child.
The presumption may have some bearing on the amount of time the court orders that a child spends with his/her parents.
If the court does order equal shared parental responsibility, it will then consider ordering equal time or ‘substantial and significant’ time. Its decision must be in the best interests of a child and reasonably practicable.
What do the terms ‘reasonably practicable’ and ‘substantial and significant time’ mean?
When determining the reasonable practicality of an order, the court will consider:
- how far apart the parents live from each other
- the parents’ current and future capacities to implement an arrangement
- the parents’ current and future capacities to communicate with each other and resolve difficulties, and
- the impact that an arrangement of that kind would have on the child.
‘Substantial and significant time’ is defined as time, including week days, which allows the parent to be involved in the child’s daily routine and for both parent and child to be involved in occasions of special significance to each other.
How will the court decide what is in the ‘best interests’ of the child?
Under the new laws, the most important considerations are:
- ensuring that children have the benefit of a meaningful involvement with both parents, to the maximum extent possible, consistent with their best interests, and
- protecting children from family violence, abuse and psychological harm.
The court will also consider:
- the views of the child (taking into account the child’s age and maturity)
- the relationship of the child with each parent and other people (eg grandparents)
- the likely effect of any change in circumstance
- the capacity of each parent to provide for the child’s emotional and intellectual needs
- how well a parent has helped the other to spend time with their child’s parents must try to facilitate and encourage the child’s relationship with the other parent (unless there are good reasons not to)
- the extent to which both parents have taken or failed to take the opportunity to spend time with and communicate with their child, and fulfilled maintenance obligations wellbeing or safety.
Relocation – what if one parent moves away?
The obligation of the court to firstly consider the maximum meaningful involvement for each parent may place increased pressure to make orders that result in the child living near both parents, wherever possible.
The law in this area can be complex. For help specific to your situation, you should speak to an experienced family law solicitor.
Can I stop a child being taken overseas?
You can take steps to prevent a child being taken overseas with a special application, often made “ex parte” in cases of extreme urgency.
In some situations, you may ask the Court to issue other orders to help locate the child; for example:
- Location order – requires a person to give the Court information about the child’s location
- Commonwealth Information order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the Department
- Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.
What if the child has already been taken from Australia?
If a child has already been taken from Australia without your consent, or has not been returned to Australia, you should contact the Commonwealth Attorney-General’s Department for assistance or contact your lawyer for assistance with the process. Australia has an agreement with some countries to return abducted children to their country of usual residence.
The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).. If the child is not in a Hague Convention country, you should seek legal advice as soon as possible.
Where do I stand?
Book a call to talk to a lawyer.