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The Presumption of Equal Shared Parental Responsibility – What this means and how it affects your child – Child Custody Lawyer advice

The presumption of equal shared parental responsibility is a consideration of the Court when determining child custody applications. The “best interests of the child” is an enshrined consideration under Australian law and is the foremost consideration in child custody cases. As such, the Act set out under section 61DA (1) that it is ‘in the best interests of the child for the parents to have equal shared parental responsibility for the child.’ It is important to note however that this presumption looks to shared responsibility, not shared time. Furthermore, it requires both parents to make joint decisions about the long-term considerations for the child. Therefore parents are required to make a genuine effort to consult with the other parent and come to a general consensus about such decisions. This is all in the best interests of the child.

The Court’s presumption applies to interim and final orders.  There are circumstances where this presumption does not apply (s61DA (3)). Such circumstances are specific and the presumption will not apply if the Court finds there are reasonable grounds to believe that a parent (or person living with the parent) has engaged in either abuse of the child or another child who was a member of the parent’s family at the time or in family violence in general (s61DA(3)).
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Court introduces new initiatives to help alleviate the significant delays in the Court

A divorce lawyer will advise you that the Court delays in hearing and finalising your property application under the Family Law Act have in some registries became even longer. It is for this reason that the divorce lawyer tries to encourage their client to consider mediation either privately or through the Court.

The Court itself is also considering options to help reduce the back log of cases.  A divorce lawyer will provide information about the PPP Program currently being tried out in some registries including at the Parramatta Federal Circuit Court.

The aim of the program is to:-

  • Identify cases that fall within the guidelines of the program
  • List those cases separately in lists where the progress can be clearly tracked
  • Lessen the amount of required documentation to be filed at Court
  • Provide those parties with the opportunity to participate in a Conciliation Conference before a Registrar (where each party and their divorce lawyer attend).

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Changing Existing Parenting Orders

Once final parenting orders are made in family law proceedings, they can only be changed with the assistance of your child custody lawyer in specific circumstances, including:

  1. where the parties agree to a change, or
  2. where a party can show that there has been a significant change of circumstances that makes a change necessary.

The Court will generally not “reopen” parenting proceedings that have been finalised to change parenting orders, unless there is a good reason for doing so and it is in the child or children’s best interest.   Continuing litigation about parenting matters is generally not considered to be in the best interest of the children, or the parties.

A recent decision of the Full Court of the Family Court of Australia determined that there was a change in circumstances that warranted a change to existing final parenting orders.

In Shan & Prasad (2020) FLC 93-980, final orders provided for the father to spend no time with his children.  The father applied to vary the orders.  The trial Judge found that there was no sufficient change in circumstances (in accordance with the rule Rice v Asplund (1979) FLC 90-725).
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Question of Paternity – How Child Support Lawyers Can Help

When making an application for child support with the Department of Human Services (DHS), your Child Support Lawyers need to satisfy the Registrar that the person being assessed to pay the costs of the child is a parent of the child. This is often called “proof of parentage”. While parents may be biological parents, the term parent also includes adoptive parents, where the child has been born as a result of artificial conception procedures, or if the child was born as a result of a surrogacy.

The Registrar can presume paternity in the following situations:

  • The child was born during the course of a marriage
  • The person is recorded on the child’s birth certificate
  • The person has signed a statutory declaration
  • The person has adopted the child
  • The person cohabitated with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • Where a Court order has determined parentage

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What Happens if I Breach My Parenting Orders?

Once the Family Court has made parenting Orders either at hearing or by consent, each party must comply with those orders. If one party has departed from those Orders there may be serious consequences for such breach. You should seek legal advice from a divorce lawyer if you or your ex-partner believe there has been a breach of the orders.

If you are unable to resolve the breach, one option forward is a Contravention Application. Your divorce lawyer may file a contravention application in the Family or Federal Circuit Court when one party alleges the other has breached their parenting orders. Contravention proceedings are generally confined to very clear cases. Your divorce lawyer will need to set out that the other party:

  1. Intentionally failed to comply with the order, or
  2. Made no reasonable attempt to comply with the order, and
  3. Had no “reasonable excuse for contravening” the order.

The primary purpose of these proceedings is to ensure compliance with the orders. However, there are some circumstances where the Court may use the proceedings to penalise a party to deter them from further breach.
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Interim Hearings – What are They and Will I Need a Family Law Lawyers Assistance?

An interim hearing can be described as Court event that gives the parties a temporary or short-term outcome until all the evidence can be considered, tested and evaluated at final hearing with the help of your family law lawyers. The Court typically takes a conservative approach at the interim hearing, generally taking a path that is least likely to cause harm to the child. Any order made on an interim basis with the assistance of your family law lawyers may be changed once the matter has been heard on a final basis.

The decision of Saif & Saif highlights the interplay between the considerations in interim hearing, including:

  1. The best interests of the child;
  2. Issues of risk;
  3. Importance of continuing a child’s relationship with each parent.

The question before the Court was whether the mother could relocate with the children from Sydney, where the father resided, to Melbourne. The Court highlighted the inherent tension between enabling parent’s freedom of movement after separation and on the other hand, to avoid obstructing a child’s relationship with the other parent.
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Is COVID-19 a reasonable excuse to withhold a child from a parent? A Family Law Lawyers Answer

A common question asked of family law lawyers in 2020 is: “do I have to continue following parenting Orders during the pandemic?”  There are very limited circumstances in which the Court will permit parents to fail to comply with Orders of the Court.

Parents will need to establish that there is a reasonable excuse for not complying. Whether the action or conduct is needed and necessary to protect the child should be considered.

In a recent case of Pandell & Walburg (No 2) the Court considered the circumstances of  COVID-19 and how it relates to reasonable excuse.

In this matter, although interim parenting Orders provided for the father to spend time with the child, the mother had been withholding the child for approximately 3 months. The father’s family law lawyers filed an urgent application for time to resume and for make-up time. During the hearing, the mother claimed that she had received advice from the child’s GP that as a result of a pre-existing health condition, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection and should self-isolate with the child. The Court confirmed that the advice of the GP to self-isolate amounted to a reasonable excuse to contravene the parenting Orders and withhold the child. However, a later updated report confirmed that the child is not at high risk during the COVID-19 pandemic. From that point, the Court found that the mother did not have a reasonable excuse. Ultimately, the Court Ordered time with the father to resume and for make-up time with the child.
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What Does the Closing of the NSW-Victoria Border mean for my Family Law Matter?

The NSW Law Society published a COVID-19 update on 9 July 2020 providing some guidance to families and family law lawyers about the re-closing of the border between NSW and Victoria. The update is as follows:
With NSW-Victoria border closures in place, it’s expected that parties should cooperate and ensure the best interests of the child are addressed by complying with court orders. If strict adherence to parenting orders is not possible, it is imperative that any revised arrangements reflect the spirit of the orders. The Courts have previously issued information in relation to parenting issues that may be of assistance including:

  • National COVID-19 List – National court list dedicated to dealing exclusively with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic.
  • Border restrictions and parenting orders – Guidance in relation to border restrictions and shared parenting.
  • Parenting orders – Statement from Chief Justice, the Hon Will Alstergren.

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