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Childs Best Interest is Paramount

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (“FLA”) came into affect on 1 July 2006 and introduced a move towards cooperative parenting.

Recent judgments in the Federal Magistrates’ Court and the Family Court show that the amendments brought about by the FLA has affected the way that the Court addresses parenting arrangements for children when their parents separate.

The breakdown of a marriage, and the subsequent readjustments that the parties must make, can be a very traumatic experience for all involved. Often the forgotten victims of these disputes are the children.

Reasons for Change

Studies indicate that equal (or nearly equal) shared care gives a child the best chance of maintaining strong relationships with both parents and developing into a happy and well-adjusted individual.

Amendments

The amendments provide for a presumption of equal shared parental responsibility. This presumption can be overruled in certain circumstances. For example, if a parent has abused a child, the presumption will not apply. Parental responsibility refers to the idea that parents must consult each other over long-term issues about the child, such as education and significant changes to living arrangements. However, it does not extend to issues which are considered “minor”.

Objectives and Principles of the Legislation

The objective of the FLA is to instil the presumption that it is generally in the best interests of the child to ensure that he or she has the benefit of both parents having a meaningful involvement in their lives. If evidence to the contrary exists to show that shared parenting is not in the best interest of the child, the Court will consider the specific facts and circumstances applicable to that case to ensure that children are protected from physical or psychological harm and receives adequate and proper parenting. On the outset, the purpose is to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the child.

The objectives of the FLA are supported by principles, including:-

  • the child has a right to know and be cared for by both of his or her parents; and
  • child has a right to spend time and communicate on a regular basis with both of his or her parents and “other people significant to their care, welfare and development.”

The FLA also provides that the Court will consider equal time with each parent as a starting point. However, in reality this does not guaranty the ultimate outcome to be 50:50 time due to practical concerns. To this regard, the Court will only apply 50:50 time only when there is an order for shared parental responsibility, where it would be reasonably practicable to do so and where it is actually in the best interests of the child.

The Impact of the Amendments in Interim Proceedings

Prior to the amendments, one of the complaints often made was that the Court was given too much discretion and this diminished the predictability of decisions. The FLA seeks to remove a certain level of discretion from the Court and make it easier for professionals to predict the likely decisions of the Court.

To do so the FLA has expanded the checklist of what is in the child’s best interest. This checklist will assist the Court to determine the best interests and decide the appropriate parenting order in the circumstances.

The new amendments were put under scrutiny in Goode v Goode [2006] FamCA 1346. In that case, the Court outlined that the presumption of equal shared parental responsibility does not imply the presumption that a child should spend equal time with each parent. Ultimately, the court emphasised that ‘[t]he child’s best interests remain the overriding consideration’.

The main contention that has been drawn from recent judgments is the importance to maintain healthy relationships between the parents and children in respect to parenting orders.

Trends in Judgments

Since the amendments were introduced, trends have emerged in judgments. For example, In B & B (No.2) [2007] FMCAfam 5, Brown FM outlined the importance of the factors regarding what is in a child’s best interest but stated that these factors vary from case to case and that the principles of the FLA are a decisive indicator.

Although there have been numerous changes to family law in the past 30 years, the fundamental aspects of the law have remained constant. It seems from the cases heard so far that the amendments to parenting arrangements have provided an extension to the previous law. In most judgments the amendments are being followed carefully to apply the intention of the legislature. However, discretion still remains! Therefore, each case will be determined on its facts in accordance with the legislation.

If you have any queries in relation to parenting orders or family law in general, please do not hesitate to contact Berrigan Doube Lawyers for more information.