Children and Separation FAQ

May 25, 2016 – at 4:01 am – by Bodekers Family Lawyers

What may the court consider when determining child’s best interests?

The benefit to the child of having a meaningful relationship with both of the child’s parents; and

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Any views expressed by the child that the court thinks relevant;

The nature of the relationship of the child with each of their parents or other persons;

The extent to which each of the parents have fulfilled their obligations to maintain the child; and

The extent to which each of the parents have taken the opportunity to participate in decision making about long term issues in relation to the child, in addition to opportunities to communicate and spend time with the child.

Can children give evidence in court?

Unfortunately, in family law matters in Perth, the answer may be “no”. Under the Family Law Act (Cth) 1975, generally a child cannot be called as a witness in proceedings in the Family Court, nor can they be present during proceedings, unless the court specifically orders otherwise.

There are situations when views expressed by children as to their preferred living situation may be heard as evidence, even if made to a third party. For example, the case of Reynolds v Reynolds (1973) 47 ALJR 499 was heard in the High Court where a child’s oral evidence had been incorrectly rejected.

What should you do if you think your partner is abusing your child?

If you think your child may be at risk of abuse, you should contact an experienced family lawyer as soon as possible.

After consultation with your solicitor, a notice of child abuse or family violence may be filed, which will bring the matter directly to the court’s attention, giving them the opportunity to consider the matter and issue any orders that may be required.

What is child support?

Child support in family law requires one parent to provide financial assistance to the other parent, for the costs involved in caring for a child.

Am I eligible to pay/receive child support?

The child support assessment formula weighs up the costs of the child against the contributions of each parent, relevant to their income.

For example, parent ‘A’ provides eighty percent of the total household income, and thirty percent of the total care of the child. Parent ‘B’ provides only twenty percent of the total household income, but seventy percent of the total care of the child. In this scenario, Parent ‘B’ may be eligible to receive child support from parent ‘A’.

What is a parenting plan?

The Family Law Act 1975 provides that a parenting plan is an agreement that:

  1. Is in writing; and
  2. Was made between the parents of a child; and
  3. Is dated and signed by the parents of a child; and
  4. Deals with at least one of the specified matters.

When is a parenting plan used?

A parenting plan is used in relation to the division of care and responsibility of a child.

The specified matters that parenting plans deal with include, but are not limited to:

  1. The person/persons with whom a child is to live;
  2. The time a child is to spend with another person/persons;
  3. The allocation of parental responsibility for a child; and
  4. The financial maintenance of a child.

What is adult child maintenance?

Adult child maintenance is child support for children past the age of 18, granted to help cover expenses in certain circumstances.

Am I eligible to pay/receive adult child maintenance?

The Family Law Act (Cth) 1975 provides that situations where further financial support is necessary may include:

To enable the child to complete his or her education; or

Because of the child’s mental or physical disability.

Am I eligible to pay/receive child support overseas?

Possibly. The case of Orzel & Orzel [2015] FCCA 1941 dealt with the application by a father to alter the Orders made by a European court requiring him to pay child support to the mother whilst her and her child are living overseas.

The Convention on the Recovery Abroad of Maintenance gave the wife the ability to apply for child support as she would if both parties were in Australia, and also gave the husband the ability to apply to have it altered, as he would here.

Will family violence affect custody orders?

Yes. Under s60CG of the Family Law Act 1975, the court should consider the extent to which orders are consistent with family violence.

In the recent case of Jackson v Macek [2015] FamCAFC 114, orders were appealed. Consideration needed to be given to a Family Violence Order against the father and/or the father’s pleading guilty to assaulting the mother.

Can a parent’s wishes overrule a child’s best interests?

No. The High Court noted in Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, that the reason a parent can give consent is because they are presumed to be acting in the best interests of the child.

This may mean that while a parent’s wishes regarding their child’s best interests could be a consideration, their power to enforce them might be limited by what is objectively in the child’s best interests.

Can a parent always decide if their child receives medical treatment?

No. In the case of Minister for Health vs AS (2004) 29 WAR 517, Justice Pullin said:

“The question is not whether to respect the parent’s wishes. The role of the court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents’ wishes may be relevant, they are not determinative.”

When should a parent consent to medical treatment?

Wherever doing so would be against would be in the child’s best interest.

For example, in the case of Minister for Health vs AS (2004) 29 WAR 517, Justice Pullin said:

“Where…the child will die if lifesaving treatment is not performed, which has a good prospect of a long-term cure, it is beyond doubt that it is in the child’s best interests to receive that treatment”.

When might the court overrule a parent’s decision regarding medical treatment?

In a recent case a child had cancer and doctors recommended chemotherapy treatment.

The parents thought it would be in the child’s best interests to treat him using alternative therapies focusing on nutrition.

The Court and an Ethics Committee considered that following the parents’ wishes would not be in the child’s best interests and ordered chemotherapy.

Do grandparents have any rights in respect of their grandchildren?

Grandparents do have some rights in respect of their grandchildren, and the court may take them into account when determining the child’s best interests.

The Family Law Act 1975 specifically mentions a child’s relationship with their grandparents as a consideration when making orders.

What does parental responsibility mean?

The Family Law Act 1975 uses the term “parental responsibility” meaning “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

How can the court alter my parental responsibility?

One way which a court can do this is with a “parenting order”, limiting or expanding a parent’s responsibility to the child. An order can also determine how those responsibilities are to be carried out.

Does a parenting order automatically alter my parental responsibility?

No. As a general rule under the Family Law Act 1975, a parenting order does not take away any aspect of the parental responsibility in relation the child unless:

  1. Expressly provided for in the order; or
  2. Necessary to give effect to the order.

What is a “rebuttable presumption of parental responsibility”?

In determining parental responsibility when making a parenting order “…the court must apply a presumption that it is the best interests of the child’s parents to have equal shared parental responsibility for the child.”

How do I rebut the presumption of parental responsibility?

The Family Law Act 1975 states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:

  1. Abuse of the child or another child who was a member of the parent’s family.
  2. Family violence.

Will I still have parental responsibility after I adopt my child?

Under the Family Law Act 1975, a parent’s responsibility to the child ends, to whatever extent it existed beforehand, after the adoption by an authorised adopting parent.

Note that you will need the court’s permission to enter into adoption proceedings.