Best interests of the child principle comes first

All negotiations and court proceeding involving children are child-centric. What is in the best interests of the child is not necessarily what either or both parents think is in the best interests of the child. The court weighs up what is in the best interests of the child on the facts of the matter and the child’s circumstances.

Two very important factors that are considered in making decisions about the best interests of the child are: (1) a preference (but not a right) for both parents to have a meaningful relationship with their child; and (2) for the child not to be exposed to physical and/or psychological harm caused by, for example, intractable disputes between the parents or a history of family violence against the child or against the other parent.

If the court does find that there is no good reason for the child not to have a meaningful relationship with both parents it moves it’s consideration to other less important (but still important) factors that may influence its final decisions. In summary, after looking into whether there may be harm being caused to the child, the court looks at the quality of the relationship between the parent and child, the quality of the parenting provided by each parent, how practical the child’s living arrangements will be for that child in future and the child’s right to spend time in their culture and with other relatives.

Equal, shared parental responsibility (ESPR)

ESPR is about making guardianship decisions about important matters affecting the child. Whether or not the child spends equal time with both parents, the law nonetheless presumes both parents have the right and obligation to make joint decisions about major, long term issues such as education, medical care, living environment and so on.

In many cases, the parents will not dispute ESPR, however, if the court must make orders about ESPR because it is a matter that cannot be solved by negotiation, it may seriously affect the amount of time a child spends with the parents. For example, the presumption can be rebutted by evidence of a reasonable probability of family violence or child abuse.

Furthermore, if one parent excludes the other parent from joint decision making about the child’s long term and important issues, and where a court order has been made about ESPR, the parent withholding that right from the other parent may find themselves back in court.

Of paramount importance in court making a decision about ESPR is the best interests of the child principle.

Parenting Orders

In most instances where a Parenting Plan has been agreed to by the parties, it is worthwhile to “convert” the Plan into a consent order, which means that if there is any breach of the Plan by a party, the other Party can enforce the Order.

It is not always the case that parents can or will agree to a Parenting Plan and then the Court will need to make Parenting Orders based on the evidence before it. While less than ideal because it is imposed rather than negotiated, it is necessary in some instances that the Court effectively creates a parenting plan by way of court order. If a parent later persistently contravenes the Order, the other parent may apply for a Contravention Order, which lead to financial and other penalties for the contravening parent.

Special types of Parenting Orders

Change of name issues

If the child is under the age of 18, the consent of both parents is required for the child to change their name. Where one parent refuses or can not be located, the other parent can bring an application to court to change the child’s name, however, again it must be proven that the change of name is in the child’s best interest.

Medical procedures

Parents sometimes to not have the legal power to consent to certain medical procedures on behalf of their child, for example, the sterilisation of a child or commencement of hormone therapy on a child that wishes to undergo a sex change process.

Usually in these situations, an Independent Children’s Lawyer is appointed to represent the child’s interests and welfare.

Passports

Both parents must apply for a child’s passport. If one parent refuses to give consent for a passport to be issued for their child, the other parent can seek court orders allowing them to apply on their own for the child’s passport.

IF there is a risk the child will be removed from Australia by a parent, an application may be made to the court for the surrender of the child’s passport.

International Travel

Where parents disagree about a parent taking a child overseas, they are expected to genuinely attempt to resolve the dispute before bringing the matter to court. 

The uneasy parent should be provided with details such as a detailed travel itinerary, details of vaccinations required, visa details, passport details, details of the people the child will be seeing on that trip, names and contact details of those persons and possibly even monetary security for the return of the children to Australia.

It is, however, a fact that the court has very limited powers outside Australia and therefore limited powers to order the return of the child.

Airport watch lists

If a parent has a real fear their child may be removed from Australia, the parent can obtain an order, including an urgent order if necessary, for the child to be put on an airport Watch List. Children can also have their names removed from Watch Lists also by order of the court.

Child alert requests

If a party thinks someone may apply on their own for the child’s passport without informing them, then a Child Alert Request can be completed which puts the Post Office on notice should the other parent apply for a passport for the child. No court order is required and the alert does not have to be disclosed to the other party, but note that this request has no effect if the child already has a valid Australian passport, or the parent is able to obtain a foreign passport for that child.

Child Support Agreements and Assessments

Parents have a choice to either have a Child Support Assessment made by the Child Support Agency or and pay child support in accordance with that assessment; or they may privately agree to child support payments between them. Any limited agreement must be approved by the Child Support Agency. If a payee is receiving Family Tax Benefit Part A the Department of Communities and Justice must approve the private agreement. All private limited agreements must provide a dollar value of support at least equal to that provided under a private agreement. A binding child support agreement does not have this requirement, but both payer and payee must receive independent legal advice.

With Child Support Assessments, many factors may influence who pays and the amount that must be paid including the number of children to be supported, the parents’ income, who the children live with, whether the child is able to partly support themselves and so on.

While Child Support is usually dealt with by the Child Support Agency, lawyers can be engaged in negotiation and drafting private agreements and where assessment is complex or variation of the assessment is required and applications for variation have been rejected by the Child Support Agency.

Furthermore, if parents are applying for Parenting Orders, parents can also apply to have child support matters to be dealt with concurrently; for example, apply for child support to be paid in lump sums (instead of periodic payments) including to third parties such as to the child’s school.