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PARENTING MATTERS AND CHILD SUPPORT

The future care of the children of a relationship – whether it be a marriage or a de-facto relationship – is one of the most difficult issues facing separated couples. Deciding who the children should live with, and how much contact the children should have with the non-resident parent can be one of the most sensitive issues to resolve after a relationship breakdown.

The law in relation to the care of children (other than children who are subject to welfare orders, who are governed by different laws) is covered by the Family Law Act 1975. In regards to children, this legislation is based on the principle that the best interests of the child are paramount. Put simply, the law looks as the situation as:

“children have rights, parents have responsibilities”

The best interests of the child are considered with reference to a number of factors, and the court begins with the proposition that each parent should have equal and shared responsibility in major decisions in respect of their child/ren’s lives. This also includes the child’s right to maintain a personal relationship and have direct contact with each parent on a regular basis, and the need to protect the child from physical or psychological harm.

Separated couples can make decisions about their children in a number of ways. They may be able to agree between themselves about who the child should live with and how much contact they should have with the other parent.

Where the parties cannot agree, they may attempt Family Dispute Resolution or Mediation to attempt to negotiate with the other party and enter into a Parenting Plan. If this is not successful, then a party wishing to formalise an agreement may seek a Parenting Order from the court.

Under the present rules, known as the Family Law Rules 2004, a person cannot make an application to the court for orders in relation to children until they have attempted some form of dispute resolution or mediation with the other parent.

Orders in relation to children are never really considered to be “final orders” in the way that court orders in relation to property issues can be considered to be final. This is because the law recognises that issues in relation to children can change, and there needs to be the ability for the court to respond to changed circumstances in the best interests of the child.

This page is not intended to constitute or be a substitute for legal advice. If you wish to obtain specific advice and consult with one of our family law solicitors in regard to your situation please contact us on (02) 9344 2000 or send an email to family@kydonsegal.com.au.