When families with infants and toddlers break up, the mother is usually the primary carer of the young children. The father’s time is often limited to spending some hours weekly with their young children.

Today, many fathers desire to develop a close bond with their children from a young age and are increasingly seeking family court orders for substantial time including overnight contact with their young children. Here, “young children” refer to children below 4 years of age.

The question is what factors the family court will consider in determining whether a father ought to spend overnight time with their young children and the frequency of such overnight time.

In Australia, parenting arrangements are governed by the Family Law Act 1975 (Cth). There is nothing in this act to limit or prohibit a parent from having overnight time with their young children. Under the Family Law Act, the paramount consideration is “the best interests of the child.”

The following family court decisions illustrate the court’s approach to fathers seeking overnight time with their young children when the mother is the primary carer.

Barreto & Vogel [2013] FCCA 550

Facts: The child was almost 2 years old. Both parents were responsible and competent in their care of the child. At the time of the hearing, interim orders were in place where the child was spending overnight time with each parent every 2 days. Both parents sought orders that the child live primarily with him or her respectively.

Decision: The court found that the mother displayed a greater willingness and ability than the father to facilitate and encourage the child’s relationship with the other parent. The court decided that the child should live predominantly with the mother and spend regular time with the father including overnight time. The court ordered that the child spend alternate weekends with the father from Friday 4.00 pm to Monday 9.00 am and another overnight contact with the father on a weekday.

Reasoning: The court formed an overarching view: –

“It seems to me that social scientists appear to be united in their view that a very young child needs a stable base in order to form proper attachments and feel secure. In general, that is best facilitated by ensuring that the child lives predominantly with the person to whom he or she is primarily attached.”

The court further referred to the following statement from a report from the Australian Association for Infant Mental Health: –

“In Family Court populations, when conflict is high and parents do not cooperate over the care of their children, regular overnight stays should commence once the young child’s ability to communicate and tolerate separation is consolidated – usually from the age of three years.”

If your parenting matter is in court, you may have been referred to a DR Conference, or sometimes you have just separated and receive an invitation to attend a Legal Aid DR Conference, but what is a DR Conference?

In short, it is a mediation session that is organised by Legal Aid WA and which is held at their office.

Both you and the other parties in the matter will be allocated a lawyer, by Legal Aid WA.

A mediation date will be set and all parties, including an Independent Children’s lawyer (if appointed), will be present at the mediation. The mediation runs for about 3-4 hours.

Before the mediation, you will have some time to prepare your proposals and ask your lawyer questions about the mediation and what to expect.

Legal Aid WA also carry out mediations for financial disputes, if your matter meets the criteria. In the appropriate case, you can directly apply to Legal Aid WA for a mediation on your financial matters.

Family law is an area which touches many individuals and families. Many of us know someone who has separated or may have difficulties navigating with their former spouse on property and children matters. Often, we hear of bits of advice on family law from friends and family members. Sometimes, the information is confusing and overwhelming.

In this article, we tackle some of the common misconceptions in family law so that there is clarity on these issues.

1. Misconception – We need to divide our finances 50/50 when we separate

A 50/50 split is not automatically the case! As lawyers, we often hear this when we first meet our clients. The law does not automatically say that a couple’s property and finances are to be divided equally. There are many factors that need to be considered such as financial and other contributions made by each party to the acquisition of the parties’ assets, the care of the household and the children, the length of the relationship, health issues or needs of each party, the future earning capacity of each party and the needs of children under the age of 18 years old. All these factors impact on the final overall percentage in the division of the parties’ assets.

2. Misconception – Children need to live in an equal shared, or 50/50 care arrangement

This is another misconception we hear all the time! A 50/50 care arrangement for the children is not automatic when parties separate. In children’s matters, the focus is not on the parents but on the best interests of the child. There are two matters to consider:-

• Parental Responsibility
  Whether both parents or only one parent should make decisions regarding major issues affecting their child such as schooling, health and religious upbringing; and
• Live with and spend time
  Whether the child is to live with one, or both parents and if so, the arrangements for this to occur and how much time the child is to spend with each parent.

When children are not returned to a parent after the Christmas holidays or on any other occasion, it usually results in frantic phone calls and text messages to the other parent to locate the children and to find out what is happening. Prolonged separation from one parent may be traumatic for the children. If you are a parent who has to face this situation, it brings on anxiety about the children’s well-being and fear that you may not see them again. If this occurs, what are your rights as a parent and what steps should you take?

In some cases, the children’s location is known, and the other parent simply refuses to return the children. In a more extreme situation, one parent has abducted the children or is in hiding with the children and the children’s whereabouts are unknown.

The first thing to do would be to immediately try and locate the whereabouts of your children and to contact your spouse to negotiate for their return. At the same time, try and negotiate with your spouse for a video or telephone call with the children. However, if there is risk to you or the child’s safety in approaching the parent or person who is holding the child, you should seek urgent legal advice before contacting the party who is keeping the child or children.

Presumption of “Equal Shared Parental Responsibility” Removed:  Child’s Best Interest is Paramount

The Family Law Amendment Bill 2023 is a significant change in family law, particularly in relation to child custody and parenting arrangements. If you have a child custody dispute, you will need to understand these changes as they may impact the outcome of your matter in court. It may also impact the terms you may wish to propose in negotiations with the other party on parenting arrangements.

These changes come about following an Australian Law Reform Commission report in 2019.

On 19 October 2023, the Australian federal parliament passed two pieces of legislation to amend the Family Law Act 1975 (‘FLA’). Some of the changes include:

• Removing the presumption of “equal shared parental responsibility.” Previously, with this presumption in place, it meant that in negotiations and court hearings, the starting point was a presumption that each parent had an equal right to make major decisions about their children, such as schooling, medical, and religious issues. Following on with this presumption, under the previous legislation, the Family Court must then consider whether it is in the child’s best interests for the child to spend equal time or substantial and significant time with each parent. The Australian Law Reform Commission found that with this presumption in place, many parents misinterpreted it to mean that both parents should have an equal amount of time with the child. This presumption is now abolished. The starting point is no longer the parent’s right to equal parental responsibility. The focus is now clear: the one or only factor that prevails is the child’s best interest.
• What factors the court is required to consider in determining the child’s best interests has been reduced from 15 factors under the previous legislation to 7 under the amendments legislated. The aim is to simply matter and put the focus on a child’s best interest. The seven factors include a child’s safety, their views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional, and cultural needs.
• If the Family Court makes an order for the parents to have joint decision-making responsibility on a matter affecting the child, for example, schooling or medical issues, a new provision has been legislated where the parties are now required to consult with each other and make a genuine effort to come to a joint decision on such matters (only if it is safe to do so). In cases where there is family violence, this may not apply.
• The amendments also provide that when a child is spending time with one parent, that parent is not required to consult with the other parent on matters that are not major long-term issues.
• There is a requirement for the Independent Children’s Lawyers (ICL) to meet with the child in certain circumstances.
• Putting the principles of Rice v Asplund (1979) FLC 90 in legislation This case relates to when the Family Court can reopen a matter after final parenting orders have been made. Decided in 1979, this case stated that if any party wishes to vary or set aside a final parenting order, that party must show that there has been a “significant change in circumstances”.  This principle is now captured by the amendments to the Family Law Act.  Therefore, it is now legislated that to change a final parenting order, the party seeking the change must show that there has been a significant change in the circumstances relating to the child and that it would be in the best interest of the child for the final parenting order to be changed.

The media release can be found here https://ministers.ag.gov.au/media-centre/passage-landmark-family-law-reforms-19-10-2023.

If you have any questions about your family law matter, please contact our principal family lawyer and Associate Director, Alexandra Naoum at enquiries@robertsonhayles.com or at our contact number, +61 (8) 9325 1700.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting on or relying on any of the above content.

Grandparents play an essential role in caring for children, particularly after separation.

• Do grandparents have the right to see their grandchildren in Perth?

The simple answer is Yes!

Generally, the Family Court of Western Australia will consider that grandparents have a right to have a relationship with their grandchildren after the parents separate. The family court in Perth will make orders for families and children that live in the Perth metropolitan area and regional Western Australia.

• What custody rights do grandparents have?

 Grandparents have a right to be involved in their grandchildren’s lives, which includes spending time with them, having video calls or telephone communication and watching them at school events, assemblies and extra-curricular activities.

The Family Court also believes that grandparents can step in to care for their grandchild or grandchildren and have custody. Sometimes, a child welfare authority, like the Police or the Department of Child Protection, can make recommendations for a grandparent to care for a child when their parents separate or when there is a significant risk issue affecting the parent’s ability to care for a child, such as drug use or family violence.

A grandparent can apply for child custody in the Family Court of Western Australia. They can also ask the Court to make orders to enrol the child in school, seek medical treatment, or travel within or outside Australia with the child. The Family Court of Western Australia also hears court applications made by grandparents for a recovery order and relocation application.