Change is inevitable, so they say. However, when this relates to children and particularly decisions that may affect children in the long term, parents may have differing views about what may be in the best interests of their children.
Family law in Australia has developed considerably since 1975 when the Family Law Act came into existence. Over time, there have been a number of significant changes relating to parenting. However, the main concept that decisions should be made in the best interest of children has remained constant.
There is a common misconception (generally as a result of too many American television shows) that parents have rights in relation to their children. I commonly hear parents say to me that they have a right to see their children or a right to communicate with them. This, however, is not the case. In 2006, the then Federal Government introduced shared parenting legislation. The aim of shared parenting legislation was to promote the idea of shared care of children so that the burden did not fall on one parent.
The legislation set out a number of objects which were included in the Act to support the long standing principle of the message of ensuring that the best interests of children are the priority of not only parents but also of a Court.
The objects included in the Act provide that children have rights and parents have responsibilities. Children have the right to know both of their parents, have their parents play a meaningful role in their lives and to ensure that children have an opportunity to spend time with extended family and participate in any culture that may be important to the children or their family.
There is a presumption under the Act that parents will have joint parental responsibility for the major long term issues for children. This presumption can be rebutted if there has been or may be a risk of family or domestic violence.
Major long-term issues for a child include:
- with whom the child lives with and where they live;
- where a child goes to school and the type of education that a child has;
- the child’s religious or cultural upbringing;
- matters relating to the health of a child or healthcare decisions that need to be made;
- the name of a child; and
- any changes to a child’s living arrangements that may make it significantly more difficult for the child to spend time with a parent.
Parents are required to try and make decisions relating to these issues jointly. There are times where parents cannot agree about these types of decisions and may require assistance from family dispute resolution providers to come to an appropriate agreement.
Major long-term issues are different to day-to-day. Generally, the parent caring for a child has responsibility for day-to-day issues affecting the children. Sometimes this can be a divisive issue where there are different routines between households. Courts rarely interfere in the running of households unless the routine or other matters in one household have an impact upon children.
In the next issue, I will explore some of the issues that parents face when making decisions about major long-term issues for children and the challenges that this can place on rural families.