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Family law and separation
When separating you might be wondering about what the 'Family Law Act' of Australia says. Depending on your circumstances you might be looking to the law for guidance, or maybe you need to settle issues regarding your children and property in the court. We can not give legal advice. However, we can introduce you to some of the main principles of the 'Family Law Act'. As of July 1, 2006, some of the major principles of the 'Family Law Act' were changed. New principles, terms and agencies were introduced to assist separating parents.
Major principles of the new Australian 'Family Law Act'
- 'Best interests of child' - this is a central principle of the adjusted 'Family Law Act'. The 'best interests of the child' is defined as the right of the child to have a meaningful relationship with both parents and the right of the child to be protected from harm. These two considerations are very central when the 'Family Court' make decisions about children's new family arrangements after their parents' separation. However, practical issues will also be looked at when making decisions based on the considerations mentioned above.
- 'Equal Shared Parental Responsibility' - this is another central principle of the 'Family Law Act' of Australia. This principle ensures that both parents have the responsibility and right to determine what happens to their children. This means that the 'Family Court' will consider that both parents should take equal part in decision making regarding their children and that the children should spend time with both parents. It is, however, worth noting that the principle does not necessarily mean that the children should spend an equal amount of time with both parents. It is defined as the right of the children to spend time with each parent, and the responsibility and right of both parents to take equal part in decisions that affect their children.
- 'Equal time, or substantial and significant time' – Equal time with each parent is not automatic. However, under the Family Law Act, if the court orders equal shared parental responsibility, it must consider ordering that the child spend equal time with each parent, as long as this would be in the child's best interests, and would be “reasonably practicable”. If the court does not order equal time, it must consider whether the child should spend “substantial and significant time” with each parent, again, as long as this would be in the child's best interests, and would be “reasonably practicable”.
- 'Family violence' - a primary principle of the 'Family Law Act' is to protect children from harm. Family violence is defined as "actions or threats by a person against another family member or their property. It also includes witnessing such actions or threats (such as children witnessing violence)". The 'Family Court' has the responsibility to protect children from family violence as defined above.
Terms in the Act that might be relevant for you when resolving issues regarding your child
- 'Parenting order' - previously referred to as 'residence orders', 'contact orders', and 'specific issues orders'. These are legally binding decisions made by the court with regard to your children's lives after the separation. The courts have been given greater powers to deal with people who breach such orders.
- 'Parenting plans' - are written agreements between the parents about various aspects of their child's life. The parents must mutually and equally come to the agreement made in a parenting plan. To be recognised in court the parenting plan must be in writing and dated and signed by both parents. Such plans can include issues like when the children spend time with each parent, when the children spend time with other people such as relatives, the children's schooling, religious matters, health issues, special arrangements for holidays, and strategies for how the parents will agree upon changes that have to be made as the children get older and circumstances change.
- 'Independent children's lawyer' - the courts can order that a lawyer be engaged in a specific case to form a view of, and then present to the courts, what is in the best interests of the relevant child.
- 'Family Relationship Centres' - the major purpose of these centres is to assist parents in mutually coming to an agreement about what is in the best interests of their children. They can provide information, advice and other assistance for people separating.
- Family dispute resolution - from 1 July 2007 the law will require that parents try family dispute resolution with a registered practitioner before they go to court. This means that parents need to attempt to resolve any issues by attending a service such as mediation or counselling before they can go to court. When going to court parents need a certificate from a registered practitioner saying they have attempted to resolve any issues through such a service. However, there are some important exceptions to this rule, such as for example if family violence and/or child abuse has occurred.
Where to find more information about family law and the processes of family courts
- Family Relationships Online is an Australian government web site offering more information about various aspects of Australian family law. Topics you can access includes 'our children come first', 'changes to the Family Law Act', and 'additional services to families'.
- Family Relationship Advice Line is an equivalent service to the above, but via the telephone: 1800 050 321
- Family Law Courts
On this web site you can access further information about family law principles, family violence, children's matters, how to get help, and other topics that are linked to family law of Australia.
- UNESCO
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