12 March 2012
Parenting Orders and the Presumption of Equal Shared Parenting Responsibility
Section 61DA of the Family Law Act requires a Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parenting responsibility for the child.
The presumption provided for in this subsection is a presumption that relates solely to the allocation of parenting responsibility for a child. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
When deciding what is in the best interests of a child, the Family Law Act requires a court to take into account:
the benefit to children of meaningful relationships with both parents
the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).
the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
the child’s relationship with each parent and other people, including grandparents and other relatives
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
the practical difficulty and expense of a child spending time with and communicating with a parent
each parent’s ability (and that of any other person) to provide for the child’s needs
the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
the attitude of each parent to the child and to the responsibilities of parenthood
any family violence involving the child or a member of the child’s family
any family violence order that applies to the child or a member of the child’s family, if:
the order is a final order, or
the making of the order was contested by a person
whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
any other fact or circumstance that the court thinks is relevant.
Also, the Court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfill, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
If the child’s parents have already separated, a court must consider events and circumstances since the separation.
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This court case came about when one of clients Eddie (not his real name) found out that his ex-wife Roma (not her real name) was intending to take their two primary school age children to live in Western Australia. Eddie and Roma had been separated since 2010 and Roma had since re-married. Since separation, the children had primarily been living with Roma at her home in Melbourne.
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Some of the most frequent questions asked by clients of Melbourne Family Lawyers are concerning the issue of whether the client is allowed to take a child to live somewhere else, be that within Australia or overseas.
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How much overnight time should a child spend with the other parent?
23 June 2014 -
It used to be the case that “expert opinion” was that children under three were considered to have a primary attachment with their primary carer (often the mother) and it was best for them to spend most of their time with the parent with whom they had the primary attachment. The other parent was encouraged to have regular but frequent contact of a few hours once or twice a week. Amendments to the Family Law Act in 2006 were enacted to promote the following objectives to guarantee that the best interests of children are met.
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Many people believe that it is not worth the hassle of coming into Melbourne to get advice from a Specialist Family Lawyer. There are good reasons why Melbourne Family Lawyers is located in William Street Melbourne (adjacent to the Family Court of Australia and the Federal Circuit Court of Australia).
What to Expect from a Family Lawyer
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A Family Lawyer will advise you as to his or her opinion as to where you stand when applying the applicable Family Law to your particular situation. However, a Family Lawyer will never be able to provide you with a definitive outcome in your case as the outcome of your case will depend on the following.
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If you receive an Initiating Application which is to be heard in the Family Court of Australia or the Federal Circuit Court of Australia, you are entitled to put your position to the Court by filing a Response together with other court documents required under the Family Law Rules. Those other documents may include sworn Affidavits and/or a Financial Statement (for property settlement or maintenance cases).
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25 June 2013 -
As children grow older and relationships change, a previously made Court Order concerning the arrangements for the care of a child or children may no longer be appropriate. However, the Court Order remains in force until one (or both) of the parties to the court order initiate legal action to legally change it. If both agree, whilst it is possible to informally change the ongoing care arrangements for children without changing the court orders, it may lead to problems should someone later change his/her mind. It is usually better to legally formalise child arrangements with court orders.
Family Violence Safety Notices and Intervention Orders under the Family Violence Protection Act Victoria
23 May 2013 -
In Victoria, legal protection is available for family members and their associates who need protection from a family member who is subjecting them to family violence. Family violence has a broad legal definition which includes abuse which is physical, sexual, emotional, threatening, economically abusive, or, in any other way controls or dominates the family member and causes that family member to feel fear for his/her safety.
Which Family Law Court in Melbourne?
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Can I move out of Victoria without a Family Law Court Order?
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Whether you are allowed to move out of your current home to a new place depends on a number of factors.
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So your spouse has just announced, "It's over!" and you need to find a law firm to help guide you through one of the most stressful situations you are going to face. Where do you start? Do you go back to your local conveyancing law firm who looked after the purchase of your home?
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Family Court Stops Mother Taking Children Overseas to live
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Family Court Pre Action Procedures
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Family Law Disclosure Rules
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A direct extract from Family Law Rules- Parts 13.1 and 13.2
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