Children’s Matters
The Family Law Act 1975 (“The Act”) provides that parents should exercise parental responsibility either independently or jointly. Under the Act, there is a presumption that it is in the best interest of the child for parents to have equal shared parental responsibility. That is, both parents should be involved in making decisions with respect to their children.
There are many issues that can arise between parents regarding their children, including:
1. How or where the children will be educated;
2. What religion the children they practice;
3. Whether a child should have a major medical procedure;
4. Where children will live (previously known as residence or custody);
5. How much time will the children spend with each parent (previously known as contact or access);
6. A parent wishing to relocate interstate or internationally with children;
7. The child’s name;
8. Applications for passports;
9. What school will the child attend;
10. Issues about extra-curricular activities.
If the Court is called upon to make parenting orders, then the child’s best interest remains the paramount consideration. Section 60CC of the Family Law Act sets out the considerations for the Court in assessing the child’s best interest. The primary considerations are the benefit to the child of having a meaningful relationship and the need to protect the child from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence. The additional considerations include the wishes of the child, the nature of the child’s relationship with each parent, the willingness and ability of each parent to facilitate a close relationship with the other parent, the likely effect on the child of a change of circumstances and other considerations. The intention of the legislation is that both parents should have a substantial involvement in their children’s lives.
In the event that the Court finds that parents should share parental responsibility, then the Court must consider whether the child should spend equal or substantial time with each parent, taking into account the best interest of the child and whether it would be reasonably practicable.
Relocation
If you wish to relocate with your child or children and the other parent opposes your relocation, it will be necessary to apply to the Court for an Order for leave to relocate. Conversely, if the other parent wishes to relocate with your child, you may make an application to restrain the other parent from relocating. In the event that the other parent relocates without your agreement, you may be able to make an application to the Court for the child to be returned.
Change of Name
If there is a dispute regarding a child’s surname, we can assist you with an application to Court to resolve the issue.
Passports
Usually both parents of a child must sign an application for a child’s passport. A party may find it necessary to apply to the Court for an order to enable the child to be taken overseas without the other parent’s consent. Conversely, if a parent has concerns that the child may be taken out of Australia permanently, that parent may apply for an order to restrain that from occurring.