The Legislative reforms in 1996 removed the words ‘custody’, ‘access, and ‘guardianship’ from the Family Law Act 1975 (Cth) (“the Act”) to further discourage parents to view children as possessions and to encourage them to focus not on legal intervention but on the fundamental need for children to develop a close and meaningful relationship with both parents whenever possible. The terms “parental responsibility”, “residence” (who a child lives with) and “contact” (time spent with the parent who did not have a residence order) were used between 1996 and 2006 however there was a shift away from these terms as well as they seemed to promote the idea that the “residence parent” was the main or primary parent, with the “contact parent” being secondary in importance or value to the child. In July 2006, the term ‘contact’ was replaced with the more concepts of ‘time spent’ and ‘communication’ with each parent. The term ‘residence’ was replaced by the simpler language describing the person or persons a child lives and this will be the focus of this article.
To be clear from the onset, there are no rights at all for parents under Australian family law. The child is its entire focus. This is regardless of whether the child is born in or out of wedlock.
In deciding the person or persons a child lives with, the Court is guided by the principles of what is in the best interests of the child. Where it is in the best interests of the child for them to live with both parents then the Court can make orders to that effect. For example, if the parties live in close proximity to each other, their working hours are such that they are available to care for the children, they live near the children’s school then in those circumstances an arrangement can be made that the children live with each parent on a week about basis or on a nine-night/five-night spilt over the fortnight.
An alternative arrangement is where one parent works full time and with school-age children, an arrangement could be made for the children to live with one parent and spend time with the other every second weekend, usually with at least one overnight stay.
There will then be separate arrangements with respect to school holidays, public holidays, special occasions such as Mother’s Day, Father’s Day, Christmas Holidays and Easter Holidays.
To deny a child spending time with or living with a parent may have grave consequences to their development and such orders will only be made in exceptional circumstances and upon solid grounds. The best interests of the child are the paramount consideration. It is desirable for a child to maintain a meaningful relationship with each of his or her parents. It becomes even more desirable when the parents are separated. Parties to a marriage or de facto relationship may divorce or separate as they case may be, from one another, but they both should bear in mind that they can never divorce or separate themselves from their child/ren. It is therefore important to remember that the child/ren have a right to have an opportunity to have a meaningful relationship with each parent.
If there is a situation where spending time or living with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such. An example of where the Court may refuse for the child to spend time with or live with a parent are where there has serious family violence, bearing in mind that the court in arriving at this decision, will be guided by the need to protect the child from being subjected to either physical or psychological harm, abuse or neglect.
Separating or Already Separated?
At Corney & Lind, we understand the intrinsic complexity of family law and the accuracy needed to apply the law to your family’s unique circumstances. We understand that no-one gains from a lengthy and bitter struggle over children and/or property.
Proactive (not reactive) counsel from our team will help you to make wise, informed decisions, and we aim to resolve matters quickly.
We will assist you to make decisions about your legal matters which are in accordance with your personal values, so you and your family can move through this period of transition as peacefully as possible, with your integrity intact. For more information, contact us today.