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Parental Rights in Family Law

A large proportion of family law matters deal with children after the breakdown of a relationship. This leads many parents to ask: ‘What are my rights are as a parent?’

To put it plainly, the person who has rights according to the Family Law Act 1975 (Commonwealth) is the child. Parents have responsibilities under the law, but it is the rights of the child that are of paramount concern and protected under the Family Law.

The Court can make interim and final orders regarding the children, with the parties involved having input by submitting applications to the Court with the orders that they would like in place, but the Court is not bound by these proposals.

The Court starts with the presumption that the parents will equally share the responsibilities for the child[1], However, the Court has a wide range of factors and concerns to consider when deciding. The guiding principle is that the Court will determine: what is in the best interest of the child[2].

How does the Court decide what is best for my child?

The Family Law Act 1975 sets out a long list of considerations[3]. These are divided into two subsections, the primary considerations and the additional ones.

The primary concern is that the child has the right to have meaningful relationships with both parents[4], and is protected from harm (physical and/or psychological)[5]. There are many additional considerations[6] including:

· any views expressed by the child;

· the nature of the relationship of the child with each of the child’s parents and other persons, including relatives;

· the effort put in by the parents to participate in making major decisions regarding the child, time spent with the child and their communication with the child;

· the extent to which the parent has fulfilled their obligations to the child;

· the possible effects resulting from changes in the child’s circumstances;

· practical difficulties experienced by the parent that will affect the child substantially;

· the capacity of each of the parents and other people involved to provide for the emotional and intellectual needs of the child;

· the maturity and lifestyle of the parent;

· the child’s cultural heritage and connection to that culture;

· the parents’ attitude towards the child;

· if there is family violence and, if there is a family violence order in place;

· circumstances and events since separation;

· and any other factors the Court considers relevant.

My child’s views

Another common question asked is – How old does my child have to be to decide?

Many clients are surprised to find that that there is no specific age when a child can decide and that for the purposes of Family Law a child is a child until the age of 18.

In the 2016 case of Bondelmonte v Bondelmonte, the judge said that whilst obliged to consider the weight to be given to the views of the child, the orders made do not have to be consistent to those views.

In this case the Judge ordered two children aged 15 and 17 to return from New York to live with their mother in Australia, despite the children expressing their wishes to stay living with their father overseas. The father had removed the children from the country in breach of a court order and so, in their bests interests, they were ordered to be returned to their life in Australia[7].

Other factors considered by the judge at their discretion include the child’s maturity, knowledge and understanding of the current circumstances, influences, and in some cases, a Family Consultant’s report. Ultimately, the decision in each case will depend on the specific and unique circumstances of each family and how the law is applied.

At Voice Lawyers, we understand your concerns and are happy to assist you in navigating the legal processes in family law matters.

Please call us at Voice Lawyers on (02) 92318602 or to make an appointment.

Voice Lawyers have offices in Sydney CBD and Macquarie Park.

[1] Family Law Act 1975 (Cth) s 61DA.

[2] Ibid s 60CA.

[3] Ibid s 60CC

[4] Ibid s 60CC 2(a).

[5] Ibid 2(b).

[6] Ibid 3(a)-(m)

[7] Bondelmonte v Bondelmonte [2016] FamCAFC 48

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