What i need to know about Children and the Divorce Process
What do I need to know about children and the divorce process?
Since 1995, changes have been made to the Family Law Act 1975, where it is recognised that parents in dispute must make decisions in the best interest of their children and not their own interests.
Thus, the law provides various factors which the Courts must consider when deciding the children’s residence, contact with parents and other issues. These are as follows:
1. The significance of any expressed wishes made by a child;
2. Each parents relationship with each child;
3. The effect of separating the child from a parent, family or friends;
4. The difficulty and expense on a parent if a child has contact with that parent and in particular, whether this jeopardises the child’s right to continue their relationship with this parent;
5. Whether the parents or other relevant person are capable of providing the child’s emotional, intellectual and other needs;
6. Characteristics of the child that may influence a Court’s decisions such as their age, maturity or background;
7. The parents ability to physically and psychologically protect the child;
8. Each parent’s ability to care for the child;
9. Whether there is any family violence; and
10. Any other relevant factors the Court should consider.
Essentially, the best solution is if the parents can settle the issues in dispute outside the Court. It is then highly recommended that the parent’s file Consent Orders in Court to formalise their agreement.
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The benefits of having these Consent Orders are:
1. The general view is that the parents know what is best for their children in comparison to the Court judges;
2. They provide assurance and guidance for the parents and thus the children will return to a routine;
3. They minimise potential stress, extra expenses and wasted time in pursuing the matter to a Court hearing, which in turn minimises stress on the children involved;
4. They also minimise further disagreement between the parents and encourage the parents to work together in caring for the children, which sets a positive example for the children.
5. If a parent breaches any of the terms, this gives rise to the other parent to make a claim in Court requiring the defaulted parent to obey the terms.
6. What do I need to know about children and the divorce process ?
Sadly, every year, many thousands of marriages end in divorce.
Legal proceedings to end marriage will have huge emotional and financial impact on all family members - whether you are the “leaver” or the “left”.
How do I approaching issues involving children ?
Amendments were made to the Family Law Act 1975 relating to children, during 1995. These amendments meant that the parents were required to focus on the rights of children, rather than their own rights. The amendments now mean that expressions such as ‘custody’ and ‘guardianship’ no longer apply in Court. These terms were replaced by the following:
§ Residence - an order which states with whom the child shall reside with
§ Contact - an order detailing the people with whom the child shall have contact, usually including specific dates and times of such contact
§ Specific issues - include other issues relating to the care, welfare and development of the child such as:
§ the person responsible for the day to day or long term care, welfare and development of the child
§ the person or persons responsible for transport arrangements involving the child for contact purposes
§ the child’s family name (surname)
§ the disclosure of addresses and telephone number relevant to the child
§ relocation of the child, or interstate and overseas travel.
Section 65E of the Family Law Act 1975 states clearly that in all matters involving children, the best interests of the child must be paramount.
How do I determining the child’s best interests ?
The best interests of the child should always be priority in determining arrangements.
Section 68F (2)sets out certain factors that the Court has an obligation to consider in determining the child’s best interests. These include:
§ if a child expresses factors, the Court needs to consider the relevant weight that the wishes should be given
§ the individual relationship of the child with each parent
§ consideration of effects that separation from family members, friends and the other parent would have
§ difficulty and expense associated with a child having contact with a parent. Consideration will also be given to whether that difficulty or expense would greatly affect the child’s right to maintain personal relations with the parents
§ the ability of each parent, or any other person, to provide fort he needs of the child’s, including emotionally and intellectually
§ the child’s age, maturity, background, and other relevant characteristics that the Court deems to impact on the decision
§ protection of the child, both physically and psychologically
§ the parents individual capabilities to care for the child
§ any family violence
§ any other factors that the Court thinks relevant to the case.
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How do we managing parenting following the separation and the role of Court orders
It is beneficial when children are involved, for the parents to come to an agreement outside of Court. The Court will impose a set of rules that will need to be followed.
If parents are able to reach an agreement without assistance from the Court, it is important that the agreement be reflected through a Consent Order. Obtaining a Consent Order in this situation is simple and does not require a Court appearance.
New partners for either or both parents can often cause disruption to agreements that have worked previously. This is due to many factors including natural emotional reactions, resentment of the relationship the new partner has developed with the child, or resentment of the new partner taking on some parenting responsibility. When a situation such as this occurs, often the distressed party will withdraw from the informal arrangements, and seek to impose new conditions.
What rights of parents have in the absence of Court orders ?
Each parent has the same rights and responsibilities in relation to the child.
Both parents are entitled to collect their children from school, the school has no rights to refuse a parent, unless that power has been given by the Court. Without a Court order, certainty of arrangements is not material. Each parent and the child is at the mercy of one another.
What are the benefits of Court orders ?
Court orders ensure certainty of arrangements.
If there is refusal of one parent to abide by the arrangements that have been settled on, then action can be taken to enforce the Terms of Settlement.
Unless the agreement otherwise states, neither parent is entitled to remove the child from
Consent Orders clarify the rules and obligations of both parents in relation to the children, and protects all parties from a further breakdown of the relationship.