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.
Can we agree on a Family Law settlement without going to Court?
25 October 2018 -
Can we agree on a Family Law settlement without going to Court? This is a question asked by many clients at Melbourne Family Lawyers. The answer is both yes and no.
Melbourne Family Lawyers Obtain Federal Circuit Court Injunction to Prevent Mother Taking Children from Melbourne to Western Australia
6 September 2018 -
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.
Defending an Intervention Order in Victoria
25 January 2017 -
An Intervention Order is a Court Order which is made by a Magistrate in the Magistrates’ Court of Victoria against a person (the Respondent) who has committed family violence against a family member (the Aggrieved Family Member).
Can I move with my child to live in a different suburb or outside of Melbourne without the other parent’s consent?
20 July 2016 -
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.
The Best Family Law Advice from Melbourne Family Lawyers
20 July 2015 -
At Melbourne Family Lawyers, we don’t offer a “free” first consultation and use it to market our services to you. The first meeting with one of our lawyers is scheduled for one hour because we know it will take a bit of time to listen to your story so that we can understand your situation and what is important to you and what you would like to achieve.
Beware of Family Lawyers offering Free Initial Consultations
26 November 2014 -
Have you come across the recent advertising from Family Lawyers offering “free initial consultations”? Have you stopped to think why those lawyers are doing that?
The Question: How much overnight time should a child spend with the other parent?
30 June 2014 -
This is a question clients often posed to Family Lawyers and Family Law Court judges. Whilst each parent may have a different personal (often rigid) opinion, what do the experts have to say about this?
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.
Choosing the best Family Lawyers – Is it worth travelling to Melbourne?
26 November 2013 -
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
8 November 2013 -
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.
Defending a Family Law Property Settlement Case in Melbourne Family Law Courts
14 October 2013 -
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).
How do you Change existing Child Custody and Contact Orders (Parenting Orders) in Australia?
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?
8 April 2013 -
Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne. This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.
Can I move out of Victoria without a Family Law Court Order?
1 March 2013 -
Whether you are allowed to move out of your current home to a new place depends on a number of factors.
Finding the Best Family Law Firm in Melbourne
15 January 2013 -
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?
Why are there more Intervention Orders in the Melbourne Magistrates Court?
14 December 2012 -
Over the past years, there has been a great increase in the number of Court Applications made to the Melbourne Magistrates’ Court for the granting of Intervention Orders under Victoria’s Family Violence legislation. There may be a number of reasons for this.
Collaborative Family Lawyers - What Women (and Men) Want!
10 August 2011 -
Marriage is a strange phenomenon that happens to human beings. And the best part is, both the unmarried and the married are unhappy, though for radically opposite reasons, one for not being married, and the other for being married.
Finding out with Family Law: Parentage Tests
14 January 2011 -
Parentage tests determining the parent of the child may be needed for Family Law Lawyer matters such as child support payments, custody, access, inheritance and adoption. But with these matters, more matters arise including questions about processes and legal requirements.
Family Court Stops Mother Taking Children Overseas to live
30 July 2010 -
In the case of Cowley and Mendoza decided in the Family Court of Australia in July 2010, a mother of two young children aged 3 and 5 was refused permission to take those children back to her home-land of Brazil. The father was an Australian and he had met the mother whilst on a back-packing holiday.
Family Court Pre Action Procedures
9 March 2009 -
Family Law Disclosure Rules
22 January 2009 -
A direct extract from Family Law Rules- Parts 13.1 and 13.2
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