When parents separate, one of the most important disputes that they need to address relates to the importance of continuing a relationship between the children or child and the parent who they do not live with on a permanent basis.
The importance of this is highlighted in the Family Law Act 1975 which relates to the rights and interests of all children in Australia. The Act sets out that its object is to ensure that children have the benefit of a meaningful relationship with both of their parents to the maximum extent that is in their best interests and to enable them to "achieve their full potential". The Act also emphasises that there is a need to protect children from any physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
The Family Law Act also sets out that the principles underlying this objective are, unless it would be contrary to a child's best interests, that:
- Children have the right to know and be cared for by both their parents.
- Children have a right to spend time on a regular basis and communicate on a regular basis with both parents.
- That parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
- That parents should agree about the parenting of their children
- That children have a right to enjoy their culture.
If parents can agree about the parenting of their children, who their children should live with and the time that their children should spend with the other parent, then they may formalise that agreement in several ways through the Family Court.
If, unfortunately, parents cannot agree about the parenting of their children, then an Application can be made to the Local Court, the Federal Circuit Court or the Family Court for its assistance in resolving disputes. Through the Court process, parents will be encouraged to reach their own agreement about the children, however, ultimately if parents are unable to agree, the Court can make Parenting Orders about a child or children. What is now referred to as a "live with" Order is a Parenting Order and the primary interest of such Orders is always the best interest of the child.
Children of a certain age and/or maturity may also be considered by the Court to have the capacity to express a view that should be considered when the Court comes to make an Order with regard to their care.
When parents separate, arrangements also need to be made to ensure the child or children remain financially, physically and emotionally supported. This is often in the form of Child Support which is payable to all children in Australia up to the age of 18 years old whose parents are separated, which is set out under the Child Support Act 1989. The non-residing parent may be liable to pay Child Support to the parent who the child or children is ordered to live with.
If you wish to seek advice on parenting matters and the consequences of separation on children, please contact our office for assistance.