We are very experienced in advising and helping clients in the area of Family Law.

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In 2006 the Shared Parental Responsibility Act amended the Family Law Act (“the Act”) and radical changes were made to the children’s part of the Act. Since these amendments to the Act the Family Courts (being the Family Court itself, and the Federal Circuit Court, formerly the Federal Magistrates Court) are obliged to take a different attitude towards children of separated parents.

The principles

Judges, parents and their advisors must take into account, firstly, primary considerations, being:

1. The benefit to the child of having a meaningful relationship with both parents; and

2. The need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence; and also;

"secondary considerations" as follows:

1. Any views expressed by the child and any factors such as age and maturity that the court thinks are relevant to the weight to be given to the child’s view;

2. The nature of the relationship of the child with each parent and other persons including grandparents and other relatives;

3. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and other parent (i.e., being a friendly parent);

4. The likely effect of the changes in the child’s circumstances including the effect of any separation from either parent, any other child or other person (including grandparent or other relative) with whom the child has been living with.

What now must be considered is not only “equal shared parental responsibility” but also how much time the child spends with the parent it does not live with, for there to be a meaningful relationship with that parent. It is much more common these days for parenting plans to provide for children to live with both parents “week about”, or spend five (5) or six (6) nights a fortnight with one (1) parent and living with the other parent the rest of the time. Equal time is also considered for school holidays, birthdays (children’s and parents), Christmas and Mother’s and Father’s days.

The process

Parents cannot seek the assistance of the courts to determine parenting disputes until a mediation process is undergone. Mediations can be arranged through Family Relationship Centres which are located in most major country towns, e.g., Nowra on the South Coast. If the mediation is unsuccessful, and that can be because one (1) of the parents does not turn up, or turns up and is not prepared to negotiate, the parties are then able to go to the courts for relief.

We always recommend that even if a mediation successfully achieves a parenting plan for the child or children that the parenting plan is confirmed by the courts, which can be done through the Local Court in most country towns without the need for the parents to attend court. A parenting plan that is not approved by a court is not able to be acted upon by police if one party chooses to ignore the agreement.

A parent is not able to relocate with the child who lives with them without the consent of the other party, whether or not there are existing court orders in place. Parties who have relocated with children are regularly ordered to return to their former home area of residence before a court will consider whether the proposed relocation is in the best interest of the child.

To sum up, the law focuses squarely on what is in the best interest of the child and not on what some parents may consider is his or her right to “live with” or “spend time with” the child.

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