Changes to the Family Law Act 1975 (Cth) came into effect on 7 June 2012. The changes aim to provide better protection in family law cases where there is domestic and family violence and abuse. For more information on the recent changes please visit:
- http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Whats+New/FLC_family_law_changes and
Separation raises many issues in relation to who the children will live with, contact with the other parent, disposal of property, etc. It is important to ensure you get legal advice about this, and useful to do this prior to separation if possible.
Family law is a complex area of law but there are some key principles to understand:
Bests Interests of the Child
The Family Law Act states that a matter before the court must be determined in the Best Interests of the Child. In determining this, there are two primary criteria:
- meaningful relationship with both parents
- protection of the child from physical and psychological harm (this includes exposure to domestic violence)
Equal Shared Parental Responsibility
There is a legal presumption that parents should share parental responsibility of their children. This means that parents have an equal and shared role in making important decisions about their children such as schooling, medical treatment, religion, etc. However, it is very important to note that this is a rebuttable presumption that means under certain circumstances the court does not have to uphold this. Exceptions to this include domestic and family violence and child abuse. If the court does uphold the presumption of equal shared parental responsibility, there must be a consideration to equal time or significant time with each parent. However, if the presumption is not upheld, this consideration about time does not apply.
How a court determines equal shared parental responsibility is governed by Section 61DA of the Act. How a court determines a child spending equal or substantial and significant time with each parent is governed by Section 65DAA of the Act.
Family Dispute Resolution (mediation)
Generally there is a requirement for parents to participate in family dispute resolution (mediation) before going to court. In general, to apply to court for a parenting order you will need to have a certificate from an accredited Family Dispute Resolution Practitioner to show that you have made a genuine effort to resolve the dispute. However, it is important to note that there are exceptions to this requirement including domestic violence, child abuse and urgency. For further information about family dispute resolution and whether or not this is an appropriate option for you go to Family Relationships Online.
In South Australia there are various options in participating in family dispute resolution:
Family Law Conferencing
This is offered through Legal Services Commission and is lawyer assisted dispute resolution. To find out more go to Legal Services Commission’s Family Dispute Resolution Unit’s webpage.
Family Relationships Centres
These offer family dispute resolution services with an accredited practitioner. Your lawyer is not present during the mediation process, however, you can still access legal advice. For more information go to Family Relationships Online.
Tips about Family Dispute Resolution (mediation)
For more information about participating in family dispute resolution, Domestic Violence Resource Centre (Victoria) offers Preparing for Mediation.
Going to court
Family law matters are heard in two courts: Family Court of Australia and Federal Magistrates Court. Put simply, the vast majority of matters are heard in the Federal Magistrates Court, and matters deemed to be complex, for example where they involve allegations of sexual abuse or serious physical abuse of children, are referred to the Family Court.
If you have experienced domestic violence, both courts require you (if self represented) or your lawyer to lodge a Notice of Child Abuse or Family Violence – Form 4.
Feeling safe at court
If you have concerns about your safety at court, you can request a safety plan by calling the Courts National Enquiry Centre on 1300 352 000. You may be able to access a security escort and safe waiting room.
If you have a Domestic Violence Restraining Order or Intervention Order it is important that the court is aware of it’s conditions.
You can read more in the brochure Family Law Courts: Do you have fears for your safety when attending court?
Women’s Information Service offer a free Court Support Program – to access this you can call 8303 0590 or Toll free rural line 1800 188 158.
Glossary of legal terms
To find out what particular words mean in the family law system, the Family Law Courts provide a glossary.
For more comprehensive information about family law and obtaining parenting orders, please refer to the Women’s Safety After Separation website. In particular, see the Legal Systems pages.
The federal government has a website, Family Relationships Online which also offers information about the family law system. They also have a Family Relationship Advice Line – Freecall 1800 050 321.
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