The most significant changes to Child Custody laws in the last thirty years.
Substantial changes have been made to the practice of child custody laws in this country by the introduction of the Family Law (Shared Parental Responsibility) Act. (1st July 2006)
Some spokespeople in the media have incorrectly referred to these changes as representing “mandatory shared parenting“, implying that children would be forced into shared care, no matter the circumstances.
Others have suggested that children would be forced into seeing abusive or violent parents. In fact nothing could be further from the truth.
These laws have stronger domestic violence and child protection measures than any other previous version of the family law act, and before making any orders for shared care Judges and Federal Magistrates must be convinced that the child will not be exposed to any risk.
As the recent statistics from the Family Court suggest, getting any form of shared care is the least likely outcome for most fathers, denials of which invariably result from some allegation or history of abuse. However many vested interest groups have seen fit to misrepresent these laws as promoting child abuse and domestic violence, and yet all the available evidence suggests that it has in fact done the exact opposite.
Nevertheless, these changes do herald in a new era whereby the importance of both parents being involved in the day to day lives of their children is recognised, at least in the legislation, and the previous presumption of sole care as the default post separation parental arrangement has been relegated to a less prominent and less certain position, the extent of which only time will tell.
What does this mean: Whereas in the past the overwhelming majority of child custody disputes ended in a sole custody outcome, shared care outcomes are now growing in prominence, both through court orders and through private arrangements. See the recent shared care statistics released by the Family Court.
Presumption of equal shared parental responsibility
These new amendments introduce into court proceedings a presumption of equal shared parental responsibility. In simple terms, this creates a starting point whereby both parents are considered to share equally the responsibilities and obligations of important decisions relating to the child/ren.
The equal sharing of parental responsibility essentially creates an obligation on both parents to consult with each other and reach agreement on long term issues to do with the child. Some of the issues that are considered to comprise the long term welfare of the child include:
- Education (particularly the school a child will attend)
- Religious upbringing
- The child’s name
- Health decisions
- Any change to a child’s living arrangement,s particularly if this would impact on the child’s relationship or ability to spend time with either parent.
What does this mean: As a default, both parents are equally obligated and collectively responsible to participate and determine issues relating to the child’s long term welfare. The term “equal” was an important addition to this section and added specifically to undermine the notion that one parent had a greater right or responsibility in these matters than the other.
Equal shared parental responsibility can be rebutted (removed)
However, this presumption DOES NOT apply when there are reasonable grounds to believe that a parent has engaged in:-
- Abuse of the child or another child who was a member of the parent’s family; or
- Family violence; or
- If there is evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (Section 61DA)
What does this mean: Equal shared parental responsibility is only the starting position and can be rebutted under certain conditions. If it is rebutted, the Court is not required to consider shared care, and would be highly unlikely to award unsupervised contact of any duration.
Obligation of the Court to consider shared care
If the above can be satisfied and an order is made for equal shared parental responsibility, then the Court must consider whether the child spending equal time with each parent would be in the best interests of the child and reasonably practicable. If it is, the Court must consider making an order for the child to spend equal time with each of the parents.
If the Court does not make an order for equal time, the Court must consider the child spending “substantial and significant time” with each of the parents.
If it does not, it must clearly explain on what basis it did not.
The term “substantial and significant time” is not intended to have a concrete definition, but it is taken to include ongoing weekday as well as weekend time. A good example of what is considered to be “substantial and significant time” would be Wednesday evening to Monday morning every alternate week, while every second weekend is considered NOT TO comprise “substantial and significant time”.
What does this mean: As long as equal shared parental responsibility is not rebutted (removed), the Court will need to consider equal shared care or substantial and significant time care as the post separation parenting arrangement.
Best interests factors
The child’s best interests is still the paramount consideration in making a parenting order. In determining the child’s best interests, the Court must now consider the factors set out in s60CC of the Family Law Act.
The new section develops a two tier approach to determining the child’s best interests; “primary considerations” and “additional considerations”.
The two primary considerations are:
(i) the benefit to the child of having a meaningful relationship with both parents, and;
(ii) the need to protect the child from physical or psychological harm.
The additional considerations are essentially the same as the old s68(F)(2) factors expect for one extra consideration. The Court is now required to consider the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
What does this mean:
(i) There are a number of considerations the Court must consider before determining what time a child can spend with each parent.
(i) Despite the number of considerations involved, the Court is still bound to make decisions that it considers to be in the child’s overall best interests. As a result any argument that successfully shows that it is not in the child’s overall best interests to have shared care will prevail and shared care will be denied.
(iii) The Court can, at its discretion, make Orders against a parent who has attempted to alienate the children from the other parent, or has otherwise not facilitated the child’s relationship with the other parent. In some cases, such as in the recent case of Irish & Michelle  FamCA 2009, custody arrangements can be reversed as a result.
Parenting plans vs parenting orders
Parenting orders are orders made by a court (including consent orders once filed with the Court) whereas parenting plans are any agreement on parenting issues, written and signed and dated by the parties. The changes provide that parenting orders are taken to be subject to any subsequent parenting plan entered into by the parties.
In exceptional circumstances (including the need to protect a child from harm and the risk that one parent will use duress or coercion to get the other parent to enter into a parenting plan), the Court can include in a parenting order a provision that the order can only be varied by a subsequent parenting order and not a parenting plan.
What does this mean: Even though you have gone to Court and the outcome has been Court orders or Consent orders (orders made by agreement but signed by the Court), these orders can be adjusted or changed at any point in the future by a subsequent parenting plan. In simple terms, as long as you agree you can alter the parenting terms determined by a Court.
Contraventions and parenting plans
A parenting plan is not legally enforceable as it is not an order of the Court. Therefore, unlike parenting orders made by the Court, should a party breach a parenting plan it is not possible to initiate legal proceedings against them as a result.
If a party seeks to enforce a parenting order, the Court may consider varying the order during the contravention proceedings. In considering the variation, the Court must have regard to a parenting plan that was agreed on after the Court order was made, and must consider whether to vary the order to include the provisions in the parenting plan.
You should take care when entering into parenting plans given that they are not enforceable but essentially override earlier Court orders. When making any agreement in relation to your children you may also need to consider filing an application for consent orders which will, when approved by the Court, take effect as a Court order.
What does this mean: If you are concerned that the other parent may breach or ultimately ignore the parenting arrangements that you both agree to, then it is advisable to make parenting orders and NOT parenting plans (even you simply wish to adjust the existing Court orders). The reason for this being that the Court can penalise a parent for contravening (breaching) a parenting order, but can do nothing if a parent breaches a parenting plan.
Following the introduction of compulsory mediation (from 1 July 2007), you will not be able to make a court application for an order about children unless you have a certificate from a family dispute resolution practitioner (mediator) or you fall within one of the exceptions set out in the legislation. These certificates will provide some detail on the attempts that have been made to resolve the dispute.
If you can satisfy one of the exceptions to compulsory mediation, you will not need a certificate. One exception is where the Court believes on reasonable grounds that there has been abuse or risk of abuse of the child by one of the parties or if there has been family violence or a risk of family violence by one of the parties. Another exception is if the matter is urgent.
Please note that a certificate may also say that a matter was inappropriate for mediation because of violence or abuse and, in appropriate circumstances, a party may wish to obtain a certificate in these terms as a way of seeking to satisfy the court that they fall within the exceptions to the requirement for compulsory mediation.
Even if the Court is satisfied that an exception applies, parties can still be ordered to attend mediation.
What does this mean: Mediation is compulsory before Court proceedings can be initiated, unless an exception is determined to apply, for instance in the case of child sexual abuse allegations.
Family Relationship Centres
Family Relationship Centres are intended to be “one stop shops” for all family issues and will offer relationship counselling and post separation mediation. The centres will play a big role in the government’s intended cultural change of keeping people out of the family law court system.
For more information on Family Relationship Centres, go to Family Relationships Online.
Children’s Cases Program
The new Act requires that courts deal with parenting orders in a less adversarial, simpler and less formal manner.
The Family Court is implementing these changes through its Division 12A proceedings (formally known as the Children’s Cases Program). These proceedings apply to all children’s cases filed in the Court from 1 July 2006 but will initially apply to cases only when they get to the stage of a final hearing or trial.
Over time it is intended that the Court’s processes will change so that the less adversarial processes commence at an earlier stage in the proceedings.
In the less adversarial Division 12A proceedings the final hearing is not conducted as a traditional court trial. It begins with a more informal meeting between the judge, the parties, their legal representatives (if there are any), a family counsellor and an Independent Children’s Lawyer where applicable. Everything said from the beginning of this first meeting until the case is finished becomes evidence in the case. The judge will then narrow down the issues in dispute and will give directions as to what evidence should be provided by the parties.
Several of these court events may take place, with the same judge presiding. If the matter still needs judicial determination after these meetings, the final hearing will proceed in the more traditional way.
We are not yet aware of how the Federal Magistrates Court and state Magistrates Courts will conduct the less adversarial, less formal child related proceedings.
Change to definition of violence
The definition of family violence now includes a “reasonableness” element. In order to fall within the definition of family violence, conduct must cause a person to be “reasonably” fearful or apprehensive about their safety