- What is Family Law?
- Who has ‘rights’ in the Family Law Courts?
- What is a Parenting Plan?
- What is a Parenting Order?
- How will the courts deal with an allegation of Domestic Violence?
- What is a Contravention Application?
- What are Supervised Visits?
- What are Contact Centres?
- What is the Role of the State Police?
- What are Location and Recovery Orders?
Family Law is the area of the law that deals with the breakdown of relationships, specifically divorce and disputes about children and property. The Family Law Act 1975 (Cth) is used for married people and de facto and domestic partners who separated after 1 July 2010. De facto or domestic partners who separated before 1 July 2010 can apply the Domestic Partners (Property) Act 1996 (SA) or opt in to use the Family Law Act 1975 (Cth) under new provisions made on 1 July 2010.
The Family Law Courts consist of the Family Court and the Federal Magistrates Court. Most matters in Adelaide start in the Federal Magistrates Court via an Initiating Application. The other parent files a Responding Application.
To get into court you generally need a Family Dispute Resolution (sometimes referred to as mediation) certificate from a registered FDR practitioner at the time when you file your Initiating Application. A certificate can be issued if:
- One party refuses to attend FDR.
- Did not make a genuine attempt to resolve issues in dispute.
- If the process is unsuccessful even though both parties made a genuine attempt.
- If the FDR practitioner decides FDR is not appropriate.
Exemptions from filing a Family Dispute Resolution certificate can be granted if:
- There is Domestic Violence.
- There is Child Abuse.
- A risk of Domestic Violence or Child Abuse occurring if there was a delay in going to court.
- If the matter is urgent, such as, recovery of a child.
- If one party can not participate effectively, possibly due to incapacity or a lack of FDR services.
- The application is for the contravention of an existing order made within the last 12 months.
The Family Law Act 1975 (FLA) talks about the ‘rights’ of children.
Section 60B (2)
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Family Law Act 1975 does not talk about parents ‘rights’ but it states parents have ‘parental responsibility’ which means parents have all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children (FLA s61B).
A parenting order in relation to a child does not take away or diminish any aspect of parental responsibility except to the extent stated in the order. (FLA s61D(2)). So an order for a child to live with one parent and spend time with the other parent does not change the responsibility both parents have for parenting decisions about the children. The courts require joint decisions about major long term issues in relation to the children (ie their well being, education, financial support and medical needs) (FLA s65DAC).
A parenting plan (FLA s63C) is an agreement, in writing, made between the parents of a child, signed by both parents and dated setting out with whom a child will live, the time a child is to spend with the other parent or anyone else, and other relevant issues.
Parenting plans are not legally binding but they can over-ride parenting orders to the degree of any discrepancy between the parenting order and the parenting plan. The courts have to have regard to any existing parenting plan when making parenting orders (FLA s65DAB).
Family court orders concerning children are called ‘parenting orders’ (FLA s64B). The terms ‘live with’ and ‘spends time with’ are used instead of the old terminology; residence, contact, custody and access which are no longer used in the Family Law Courts. The courts can not grant “sole custody” as it does not exist and the courts are keen that both parents are involved in raising their children.
A consent order can be used when the parties have agreed to the orders they wish to have in place. It is a written document and DIY kit with pro forma forms (supplement pages) can be obtained from the Family Law Courts (Telephone 1300 352 000 or www.familylawcourts.gov.au). The orders can be written by the parties but must be in a form acceptable to the courts and it maybe necessary to use the expertise of a lawyer to draft the orders. They must be lodged in court, the fee is currently $80, and once approved by the court they will be legally binding.
When there is a dispute about the care of children and the parties can not reach an agreement the courts will determine, upon application by either party, what the orders between the parties will contain.
The court considers the ‘best interests of the child’ when making parenting orders (FLA s60CA). It may be that your view of what is in the best interests of the child may be different from the court’s view. There is a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ (FLA s61DA). This does not mean spending equal time with the child but relates to major long term decision making about children. The court expects parents to talk to each other and make a genuine effort to reach agreement. This is different to the day to day decisions a parent may make. However, if the court decides ‘equal shared parent responsibility’ should apply, then it must consider if equal time is appropriate (which is not the same as saying they must order equal time).
The courts will consider if equal time is appropriate by determining what is in the child’s best interests and what is practical within the circumstances in each individual case.
Section 60CC (2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The presumption of ‘equal shared parental responsibility’ can be displaced by domestic violence, drug or alcohol issues, mental health issues, by one or both parents, and abuse or neglect of children. If this is the case, the court does not have to consider equal time but can still do so if it choses. An alternative the court can consider is ‘substantial and significant time’ where the child may spend some time with a parent on weekends, school holidays and some weekdays so as to engage in daily routines and other events such as sporting events, birthdays and school activities.
When deciding orders the court considers:
- Practicalities e.g. how far apart the parents live from one another.
- Each parent’s ability to care for their children and meet their responsibilities eg pay child support or turn up for handover.
- The ability of both parents to talk to each other and resolve any difficulties they might face with parenting arrangements, both currently and in the future, except if there is domestic violence, child abuse or in situations of urgency.
- How any arrangement will affect the children.
- Anything else that the court thinks is important.
In an ideal situation parents reach agreement about their continuing roles as parents. They can use a Family Dispute Resolution Service to assist them in formulating a parenting plan. Domestic violence does not present an ideal situation, but a Family Dispute Resolution Service may still be able to assist. (link to FDR) Parents must exercise their parental responsibility and make appropriate decisions about their children’s welfare and safety and not put their children at risk.
There are no laws that say separated parents must have court orders. A parent can make their own decisions about what is in the best interests of their own child, and those decisions may not be consistent with the ideas of the other parent. The Family Law Courts do not penalise a parent for not agreeing with the other parent, it can only penalise for breaching orders. It is not possible to breach orders if there are no orders in place.
If the parties can not reach an agreement then either party may initiate Family Dispute Resolution to create a parenting plan, this can then be drafted into consent orders (may require the assistance of a solicitor), or if unsuccessful in reaching an agreement and a certificate is issued, an application can be made to the courts to make parenting orders. The certificate is lodged in court with the Initiating Application.
Things to consider:
- Is there any proof?
- Are there any medical reports?
- Are there any police reports?
- Are there any witnesses?
- How reliable are the witnesses?
- Would the witnesses be willing to come to court?
- Will the other party deny any domestic violence?
- Will the other party present well in court?
- Will it be your word against the other party?
The Family Law Courts will determine how much weight they give to allegations of domestic violence which is difficult when they can not be substantiated. This has to be considered carefully balancing the need to protect the child with the child’s right to have a meaningful relationship with the other parent. FLA s60CG states the courts have to ensure that any order “does not expose a person to an unacceptable risk of family violence.” A fear or apprehension of family violence must be ‘reasonable.’ The court will consider whether it is reasonable for a person in the shoes of the individual to fear or have an apprehension of violence.
It can be challenging for the courts to give weight to allegations of abuse and/or neglect if that party has continued to let children be exposed to that abuse and/or neglect. The courts may consider that if the parent really thought it was serious, they would have taken action sooner and not allowed the situation to continue.
Unsubstantiated allegations of domestic violence can be difficult for the court to deal with and the way you view the extent of the domestic violence and the effect it has on you or your children may not been seen in the same way in court. The court can still grant parenting orders that will give the other party time with the child, and it can still consider equal time (see information under Parenting Orders). Parenting orders are legally binding which means the parties to the orders must be compliant with what the orders state or there can be penalties.
If there are orders in place and the child misses out on time pursuant to the order due to the other party not making the child available they can take the matter back to court for a contravention hearing which can result in the non-compliant party receiving a fine, make up time being ordered for the party who missed out on time and, in extreme cases, the Family Law Court can order imprisonment for the non-compliant party.
There can be good reasons why it was not possible to comply with a Family Court order eg child was sick in which case it would be a good idea to get a medical certificate, or there may be abuse or risk of abuse, neglect or exposure to something detrimental to the child’s well being (consider how to prove in court). A party can put forward a defence (a reasonable excuse) to a contravention application. A contravention application can take 1 week or 3 to 6 months to be heard by the courts.
The courts can order that a person be supervised when they have time with their children. The parties can nominate someone suitable who can be a family member or a friend who is prepared to have this ongoing role. This can be difficult if there is domestic violence involved or the nominated supervisor may not always be available. There are a number of services that can provide supervised visits. The courts usually only order supervised visits up to 6 occasions through an independent service and a report is then produced for the court. These services may limit the amount of time for the visits (e.g 2 hours), there is a fee involved and there can be a waiting list to access this type of service.
Contact Centres can provide a safe place for handover of children. It is usually arranged for one parent to arrive and leave earlier or later than the other parent and use a different entrance and exit. Both parents have to agree to use the service, there is a fee, there can be a waiting list to access this service and there are set times when handovers services are offered.
The police deal with criminal law which has a State based jurisdiction. Family Law falls under Commonwealth jurisdiction and is outside the jurisdiction of the police. The police can not enforce parenting orders and breaching a Family Law Court parenting order is not a criminal act. The police can intervene when the welfare and safety of a children is concerned and/or a criminal offence is committed, such as:
- Breach of peace
- Offensive language
- Property damage
- Breach of a restraining order,
- And there are many other offences).
When an offence is committed, the victim can report to the police and the police will determine if charges will be laid (the victim does not lay charges) and only the police can withdraw charges. A victim can indicate to the police they do not wish to pursue the matter and the police may get them to fill in a form and attend counselling, but the police may determine they have enough evidence and proceed with the matter anyway.
Even if an offence has been committed it does not mean the police will remove children from the party who is breaching a Family Law Court order and return them to the other parent. However, if it is apparent a child is at risk or may be placed at risk the police can arrange for that child to be removed.
When one parent takes children and prevents the other parent from spending time with their children, the parent not seeing the children can apply to the courts for the location (FLA s67J) and recovery (FLA s67Q) of children. It would be expected the parent not seeing the children would act relatively quickly in filing a location and recovery application otherwise it may appear the parent was not interested in seeing their children. It would be unreasonable to expect the courts to respond to such an application if it has been a number of months or years since time has been spend with the children and the parent has done nothing about it.
The courts can obtain information from other agencies eg Centrelink, ATO, banks, etc, to find out the location of a parent who has disappeared. This information is not given to the other parent ( FLA s67P). The courts may order the return of children and the Australian Federal Police can be ordered to be involved in this process within Australia. Parenting orders must also be sought when applying for a recovery order. If a child is taken overseas the Hague Convention provides for return of children from member countries.
Children can be prevented from leaving Australia if they are listed on the Airport Watch list. The Australian Federal Police can list children if there is an order from the Family Law Courts that specifically contains this direction.
Issues to be considered when applying for court orders:
- How much will it cost in time, stress and money?
- Will you need a lawyer?
- Will Legal Aid be available?
- Will the court consider the orders you are seeking as reasonable?
- Will the court grant the other parent time or more time they what you agree to?
Information was current at the time of writing and may be updated from time to time but not necessarily when the laws change. The views and ideas, including the interpretations of the law, are those of the author and not necessarily the views of the members of the SDVAG. This is not a substitute for legal advice or intended as an exhaustive list and anybody considering taking legal action should seek legal advice.