“By biology, or by law, or a combination of both, certain people, take on the right and responsibilities of raising children, and are, or become parents”: Masson v Parsons  FamCA 789, 46.
Recently, the Australian Institute of Family Studies (‘AIFS’) released an Evidence Summary of a study it had conducted in relation to post-separation parenting outcomes. The Evidence Summary provides very interesting statistics regarding family law parenting outcomes that cast some light on the process. While statistics do not always tell the whole truth, they can indicate trends in the family law parenting process that may be helpful when determining the best course of action in your case.
The family law system in Australia is constantly evolving and works to recognise and assist adults and children who have suffered family violence. This year, as many as 70% of all family law matters in the Commonwealth court system involve an allegation of family violence. A particular concern of the Courts is to ensure that children who are exposed to or suffer family violence or abuse are protected as much as possible.
Children are constantly evolving, developing and growing at varying stages of childhood and adolescence. They transition from preschool, to primary school, to high school; their friendship circles, interests and extracurricular activities may change; sometimes they may move to a different suburb, city or state. Change is a reality in a child’s life and studies show that people grow and develop more rapidly in their childhood than at any other point of life.
One of the primary considerations when determining what is in a child’s best interests is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”: Family Law Act 1975 (Cth) (‘FLA’) s 60CC. This consideration is given greater weight than the benefit to the child of having a meaningful relationship with both parents.
Parents with children under the age of 18 years have a responsibility to financially support and provide for their children. When marriages or de facto relationships break down causing the parents to separate, that financial responsibility to their children does not end. As a result, the primary carer is usually entitled to receive money from the non-primary carer to assist with providing for the children. This is to pay for food, clothing, education expenses and the day to day expenses in raising children. This payment occurs by way of child support.
When children are taken and not returned to their usual parent at the agreed upon time and location it can be cause for serious alarm. Questions like “Where are my children?” “Are my children safe?” “How do I get them back?” arise. The Court has a clear process for the recovery of children if children are kidnapped.
The Family Law Act 1975 states that the best interests of the children are served by a meaningful relationship with both parents in a safe environment. Where there are allegations of abuse or harm, it needs to be considered how best to facilitate time with mum and dad in a safe manner. Accordingly, supervised contact may be an appropriate solution.
Every matter involving parenting arrangements is different; they each have their own uniqueness that requires careful consideration by the court. However, across all cases, the court’s key consideration is what is in the best interests of the child.
Last month, the Australian Law Reform Commission (‘ALRC’) released its report, ‘Family Law for the Future – An Inquiry into the Family Law System’ (‘the Report’). The ALRC spent 18 months working on the inquiry, which was headed by the Honourable Justice Sarah Derrington.