How Family Law Protects Children During Divorce
Every family is different, yet many share similar concerns regarding keeping their children healthy and safe during a divorce. This fact sheet offers some key concepts of Australian family law (previously known as custody and contact arrangements).
After the breakdown of a relationship, matters related to your child/ren’s care and welfare are heard before both the Family Court and Federal Circuit Court of Australia.
Parental responsibility
Studies demonstrate that children fare best when their parents can work together on parenting and property matters to reduce conflict and avoid placing their child in the middle of any disputes between the adults. Long custody battles or forcing a child to choose sides are particularly detrimental.
Parental responsibility refers to a parent’s right and duty to make major decisions for their child, such as schooling, religious upbringing, health care needs and any significant changes to living arrangements. Both parents typically share equal parental responsibilities until a court decides otherwise.
The Family Law Act altered fault-based divorce law with a no-fault system, where grounds for divorce included irretrievable breakdown and twelve months separation as grounds. This changed the name of legal process from dissolution of marriage to divorce while shortening waiting time to one month for decree nisi.
Major long-term issues
Parents separating must decide upon custody arrangements for their children when their relationship ends, commonly known as parenting orders.
The law stipulates that decisions regarding children must always take into account what is in their best interests, meaning it would not be suitable for it to discriminate between mothers or fathers in terms of custody decisions.
These matters include who the child resides with and the time each parent spends with them. Formerly known as making custody or access arrangements, however these terms no longer appear in Australian family law.
The law encourages separated parents to try reaching their own agreement about child-related matters through family mediation services before going to court (unless family violence or urgency are present), which helps keep costs down while being better for children. Both the Federal Circuit Court and Family Court of Australia handle such matters.
Making arrangements for children after separation
As soon as parents separate, arrangements must be made for their children’s welfare – this may involve who lives with and spends time with whom. Australian family law encourages parents to work out long term arrangements themselves if possible; alternatively family mediation services may help find solutions in the best interest of each child.
Recently, family courts have placed more importance on listening to what children themselves have to say when making decisions about them and giving their views serious consideration. They’ve also moved away from assuming equal shared parental responsibility between separated parents; rather they consider each case individually.
No matter who the children live with, both parties have an obligation to financially support them – this may be done privately between parents or through Services Australia child support assessments.
Court proceedings
The Family Law Act offers a clear framework for considering questions such as who will make significant long-term decisions for children, and the amounts of time each parent should spend with them. While shared parental responsibility may mean shared custody arrangements are promoted by law, judges can award sole parenting responsibilities in some instances.
If parents cannot agree on arrangements for their children after separation, mediation with a Family Dispute Resolution Practitioner should be tried first before going before court. A judge will only issue a final parenting order (decree nisi) if satisfied that proposed arrangements are in the best interests of each child involved.
Allegations of domestic violence are taken very seriously by courts, as the Court will seek to protect children from harm. The standard of proof in such matters is generally set at “on balance of probabilities”, which is lower than criminal standards such as “beyond reasonable doubt”. Typically speaking, each side pays their own legal fees in parenting disputes.