Previously, we addressed the first part of the settlement in the event of the divorce or separation. Today, we will introduce another significant settlement – Parenting arrangement.
Even if the property settlement was resolved peacefully and amicably, it is common to have a contrary environment when it comes to the parenting matter.
There are some common misconceptions when dealing with parenting matters. People often believed that they have rights over their children. However, it is not actually true. The Family Law system in Australia states that the children have rights and the parents have responsibilities. It means that the Family law is designed to serve the best interest of the children rather than the parents.
Another common myth comes from the statement that ‘the parents have equal responsibility for their children’. It does not mean that they have equal time with their children. It is very often practically impossible in reality.
‘Best interest of the child’
There is one paramount principle, ‘what is in the best interest of the child?’ Whatever parents make arrangements for their child/children must be in the best interest of their child/children. In law, there are two considerations to define ‘the best interest’: primary and secondary considerations which will be taken into account by the court.
Primary considerations have consisted of two statements:
- The benefits to the child of having a meaningful relationship with both of the parents; and
- The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second primary consideration will be considered heavily if applicable:
For example, children have a right to have a relationship with both of their parents. However, if there are concerns about physical or psychological harm to the children by one of their parents, then supervised contact will be one option to be sought rather than ceasing communication with the parent in the issue. In this way the children are still able to continue the relationship with their parents as well as be protected from harm via the supervised contact. Both primary considerations are satisfied.
Secondary considerations
- Any expressed view of the child/children
- The nature of the relationship with child/children
- The extent to which each parent has taken, or failed to take, the opportunity to:
- participate in making a decision about major long-term issues related to their children; and
- spend time with their child/children; and
- communicate with their child/children.
- The practical difficulty and expenses required for the arrangements made; and
- Any family violence; and
- Any other fact or circumstance that the court thinks is relevant.
For example, it is the best interest of the child to have a relationship with both parents. However, if there is a great distance between each parent, then the practical difficulty must be considered.
Parental responsibility
The law provides the presumption that both parents have equal shared parental responsibility for the child. This presumption does not mean both parents to have equal physical time with their child. It means both parents share the decision-making powers over their child equally.
The parents can agree between themselves that one parent has all decision-making powers over their child or the court can decide one parent to have sole parental responsibility. Only major long-term decisions should be made together, not day-to-day decisions such as the child’s education, religious and cultural upbringing, health, name and changes of living arrangement. However, the presumption does not apply if there is any abuse of the child or family violence.
Conclusion
The court can decide the parenting arrangement on its authority, which means that the parenting order made by the court could change or overturn the current arrangement, and the result is unwanted. Contact us now if you are experiencing the dispute or similar issues; we can assist you with the parenting arrangements.
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