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Children’s matters In 1996 the Family Law Act changed so that instead of referring to custody and access the terms used in Family Law orders are "residence", "contact" and "specific issues". An order that sets out these matters is known as a "parenting order". Under the Family Law Act it is not the parents who have rights over the children. Instead, the legislation provides (unless it is against the children’s best interests) that children have the right to know and be cared for by both parents and to have contact on a regular basis with both parents and with other people significant in their lives. A residence order covers who the child will live with. Contact is seen by the court to be the right that a child has to have contact with the people who are significant in their lives. Therefore a contact order may be available not only to parents but also to others such as grandparents. A specific issues order covers the areas of responsibility not addressed by a contact or residence order. It may include schooling, medical treatment and travel arrangements. Under the Family Law Act it is specifically stated that “Each of the parents of a child who is not 18 has parental responsibility for the child” This is not altered simply by the parents separating but can be altered by a court order such as the residence, contact and specific issues orders. In deciding what parenting orders to make the Family Court must base its decision on an evaluation of what is in the best interest of the child. To do this the court takes into consideration:
When a residence order is in place the Family Law Act provides that a person must not (contrary to the order) remove the child from the care of a person, refuse or fail to deliver or return the child to a person or interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order. When a contact order is in force a person must not hinder or prevent a person and the child from having contact in accordance with the order or interfere with the contact that a person and the child are supposed to have with each other under the order. At O'Farrell Robertson McMahon we can advise you as to whether it is necessary to obtain a parenting order, either by negotiation or through a court application. Generally the Family Court will not make a parenting order until the parties have been to confidential counselling to try and resolve the matters between themselves. This counselling is not marriage counselling but more like separation counselling – to try and get you to agree on arrangements now that you have separated. This counselling can be useful in providing a forum to “clear the air” or can help to narrow the issues. In many instances people are able to reach a final agreement in this counselling. If that is the case we can then do the documentation necessary to have that agreement turned into a parenting order. At O'Farrell Robertson McMahon we can assist you in arranging that counselling either through the Family Court or through a local private counsellor. Unless you separated before 1st October 1989, the provision of money form the non-residence parent to the residence parent is governed by the Child support scheme. This is legislation administered by the Child Support Agency. Further information regarding child support can be obtained form the Child Support Agency website. At O'Farrell Robertson McMahon we can provide advice to you regarding the steps necessary to apply for child support, whether in your circumstances you should collect the monies yourself or alternatively have the Child Support Agency do this for you. In addition we can advise you regarding whether the assessment is correct, assist you in preparing for a review if necessary and consider the alternative of a child support agreement. A child’s surname can only be changed by the agreement of the parents or by a court order. In deciding whether to allow a change of surname the court will make their decision based on what is in the child’s best interests. If your child does not already have a passport, both parents must sign the passport application. If the other parent refuses to sign the passport application, and you think it is unreasonable, you can apply to the court to have a passport issued. You may also be able to stop the child being issued a passport by completing a “Travel Document Stop Request” form available at the Post Office, which asks the passport office not to issue a passport for a child. You cannot take a child out of Australia without your former partner's consent or an order of the Family Court. In deciding whether to allow travel the court will base its decision on its assessment of whether the travel will be in the child’s best interests. It is a serious offence to remove children form Australia without permission of both parents or a court order. In most circumstances, the offending party will be required to return the children to Australia. FOR FURTHER INFORMATION ABOUT FAMILY LAW PLEASE CONTACT ACCREDITED FAMILY LAW SPECIALIST MARIKA McMAHON OR EXPERIENCED FAMILY LAW PRACTITIONER LAURIE O’FARRELL.
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