Legislation in Australia allows people to apply for three types of intervention that affect family members:
- a parenting order from a Family Law Court (Family Circuit Court)
- a child protection order from a Children’s Court
- an intervention order from Police or Magistrate’s Court (restraint order)
Specific orders made under each category are described in Complexfamilies.
Family Law Court
Family Law Courts (Family Circuit Courts) were established under Commonwealth legislation initially to deal with separating parents who dispute either the amount of time a child should spent with each parent (time spent), or parental responsibility to make decisions about major long term topics.
Judges of a Family Law Court can request a family assessment that is provided by a family consultant who is a social scientist appointed by the court. Family assessments are commonly broad assessments of the functioning of the whole family that identify specific issues of concern to the Court.
In recent years Family Law Courts have dealt with complex cases that involve child protection issues as well as parenting issues.
Family Law Courts prefer to make only orders that can be enforced.
Children’s Courts are established under State and Territory legislation primarily to protect children when allegations are made of child mal-treatment (abuse or neglect) and of inadequate parenting capacity.
Child protection matters are managed by Child Protection departments. The department can request an assessment that is provided by a social science professional who is an employee of the department. Child protection assessments commonly focus on allegations made about one parent. Orders made by a Children’s Court are implemented by staff of the child protection department.
There is now greater overlap in the roles of Family Law Courts and Children’s Courts as the distinction between parenting and child protection issues has become blurred as Family Circuit Courts commonly hear complex cases as separating parents raise child protection issues in 40% of custody cases.
Police and Magistrate Courts are able to issue an intervention order if there are reasonable grounds to suspect that a named person will commit an act of abuse against another person, and if the order is appropriate in the circumstances. Intervention orders are enforced by State Police.
One form of intervention order is an Apprehension of Violence Order AVO.
Abuse to a family member includes physical injury, emotional or psychological harm, unreasonable denial of financial or social or personal autonomy, or damage to property.
Examples of acts that produce emotional or psychological harm to family members are: driving in a reckless manner while a person is a passenger, following a person, loitering near a place of residence, interfering with property, sending offensive material, publishing offensive material, communicating negatively with others about a person, surveillance of a person, making derogatory taunts to the person, withholding medication, threatening to withdraw care from a dependent person, and removing joint property without permission.
An intervention order continues until it is revoked or varied.
FAMILY LAW ACT
Amendments to the Australian Family Law Act introduced in 2006 and have changed practices in Family Law Courts.
Before 2006 when parents divorced Family Law Courts commonly granted one parent both custody of the child and sole parental responsibility. Custody was granted to the parent the child predominantly lived with. The custodial parent was also commonly granted parental responsibility or authority to make decisions about major long term issues affecting a child aged under 16 years. The non-custodial parent was commonly granted visiting rights to see the child often about every second weekend, with no clear right to participate in major parental decisions.
The 2006 amendments to The Family Law Act were designed to encourage both separating parents to continue their role as a parent after they divorced as partners. The 2006 amendments made three significant changes:
- A presumption was introduced that it is in the best interests of a child to maintain a meaningful relationship with both parents, by spending substantial and significant time with both parents
- Separated parents were encouraged to make joint decision in the best interests of their child about major long term issues that would have a lasting effect on their child
- Criteria were introduced to guide judges who made decisions about what is in the best interests of a child. Judges were given authority to make decisions about parenting matters only after it has been demonstrated that the parents are unable to agree on major long term issues following negotiation, mediation and dispute resolution that was provided by and monitored by Family Relationship Centres.
Best interests of the child
The 2006 amendments to the Family Law Act require courts to make decisions in the best interests of a child by considering two primary considerations:
- a parent’s capacity to keep a child safe from physical and psychological harm (parenting capacity), and
- for a child to have a meaningful relationship with both parents.
A later amendment requires Family Law Courts to give greater weight to protecting children from physical and psychological harm arising from a child being subject to or exposed to family violence.
Criteria for best interests of a child
The 2006 amendments to the Family Law Act identified criteria that judges must consider when making decisions about what is in the best interests of a child, including that:
- both parents have a meaningful involvement in the child’s life
- the child is protected from physical and psychological harm from being subject to or exposed to abuse, neglect ill treatment and family violence
- the child receives proper and adequate parenting to help them achieve their potential
- the parents fulfil obligations and duties concerning the care, welfare and development of the child
- child is permitted to spend time with other significant people
- any views expressed by the child are considered , while considering the maturity and level of understanding of the child
- the likely effect of any court decision on the child, including the practicality of ordering regular contact
- the capacity of each parent
- to minimise the likelihood of further proceedings
- Indigenous heritage
- any other facts and circumstances that are considered relevant
Rulings on these topic have been published in court decisions.
Competent Parenting, Parenting Capacity
Australian legislation presumes that all adults have the capacity to be an adequate parent (parenting capacity). A parent’s attitude towards their child, and commitment to meeting the responsibilities of parenthood are relevant to parenting capacity. Any person who alleges that an adult is not a competent parent (or lacks parenting capacity) must provide evidence to substantiate this claim.
A judge must consider the capacity of each parent to provide for the needs of each child including the physical, emotional and intellectual needs of a child.
Standards for adequate parenting are being established in case law, often after evidence is presented by at least one expert.
Views of Child
Judges in Family Law Courts are required to listen to views expressed by a mature child, or to hear the child’s wishes.
Australian law courts distinguish between adults who are able to provide their own informed instructions and children who lack the capacity to give informed instructions or to make informed decisions (capacity to decide). Family Law Courts are able to appoint a solicitor (Independent Children’s Lawyer ICL) to represent the best interests of a child who lacks capacity. The ICL is not required to present views expressed by the child, or even to interview the child.
The age of maturity in Australia when children are recognised as able to make their own legally binding decisions affecting family matters is 16 years.
A family law court may recognise that a child younger than 16 years is able to make a legally binding decision on a specific topic, or may recognise that a child has decision making capacity.
Behaviours that amount to family violence are: assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally destroying or damaging property, intentionally causing death or injury to an animal, unreasonably denying a family member the financial autonomy s/he would otherwise have, unreasonably withholding financial support needed to meet the reasonable living expenses of a family member or his or her child at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connections with his or her family, friends or culture, and unlawfully depriving the family member or any member of the family, of his or her liberty.
A child is exposed to family violence if the child overhears threats of death or personal injury, sees or hears an assault, comforts or assists a family member who has been assaulted, cleans up a site that has been intentionally damaged, or is present when police or ambulance officers attend an incident of family violence.
Types of Family Violence
Four types of family violence are distinguished in the Family Law Act:
- coercive controlling violence is an ongoing pattern of use of threats, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance.
- violent resistance occurs when a partner uses violence as a defence in response to abuse by a partner, as an immediate reaction to an assault that is intended to protect oneself and others from injury.
- situational couple violence does not have its basis in the dynamic of power and control, but results from situations or disputes between partners that escalate into physical violence.
- separation instigated violence is violence instigated by a separation where there is no history of violence in the relationship or in other contexts.
Abuse of a Child
Abuse of a child (child abuse) is defined in section 4 of the Australian Family Law Act as:
- an assault including a sexual assault
- a person involving a child in a sexual activity in which the child is used as a sexual object, and where there is unequal power in the relationship between the child and the person
- non-accidental physical injury to a child
- causing a child to suffer serious psychological harm including when the harm is caused by the child being subjected to or exposed to family violence
- serious neglect of a child
Powers of Family Law Courts
Legislation authorises Australian Family Law Courts to make decisions about three topics affecting children:
- parenting responsibility to make major long-term decisions affecting their child,
- time a child spends with each parent (time spent), and
- which parent a child communicates with (parent-child communication)
Parental responsibility – Major long term decisions
Biological parents share the authority to make decisions on major topics affecting their child until the child reaches the age of 16 years. However if separated parents cannot agree about major long term issues affecting a child following negotiation and mediation, then a Court may allocate authority (parental responsibility) to make major decisions affecting a child to one parent or guardian, or the court may itself make a decision.
Australian legislation requires courts to begin with a presumption that it is in the best interests of a child for parents to share parental responsibility. This presumption can be rebutted if evidence is presented that specific conditions have occurred including:
- abuse of the child or another child
- family violence
- the parents engage in such a high level of ongoing conflict that they cannot agree on major long term issues that affect a child, or
- a parent is shown to lack parenting capacity.
Family Courts can order any of three arrangements when allocating parental authority that authorises parents to make major long term decisions about a child:
- shared care, where parents cooperate and make joint decision about the child
- a decision is delegated to one parent with a requirement to consult the other parent about a specific issue and to make a genuine effort to reach a joint decision (decision delegated)
- sole parental responsibility, when one parent is authorised to make final decisions on all matters after consulting with the other parent.
Decisions about Major Topics
Separated parents are encouraged to make joint decision about major topics that have a long term impact on their child, focusing on the best interests of the child. Separated parents are encouraged to consult with each other before making a final decision.
Topics that are identified in the Family Law Act as having a major long term impact on a child are: the child’s education, religious and cultural upbringing, health and special needs, child’s name, and any change to a child’s living arrangements that make it significantly more difficult for the child to spend time with either parent.
Some courts have included further topics such as: inter-state travel, regular extracurricula activities outside of school hours, and an application for a child to have a passport.
A parent forming a new relationship is not included in the Family Law Act as a major topic that affects children.
If parents do not agree on what is in the best interests of their child after discussion and mediation, then one parent can take a dispute to a family law court for a decision about the disputed topic.
Powers over Decision Making
Family law courts can order any of six decision-making processes about major topics that have a long term effect on a child:
- joint decision-making (shared parental responsibility)
- sole parental responsibility where one parent is required to consult with the other parent before making a final decision
- sole parental responsibility with no conditions
- delegated authority for one parent to make decisions on specific topics that have been disputed
- a family law court may itself make a decision about a disputed topic
- decision making authority may be allocated to a third party such as a member of the extended family, if neither parent is capable.
Any parent who applies to a court to vary an order from joint decision-making must provide convincing evidence that joint decision-making is not working in the best interests of the child (burden of proof). A parent who applies for sole parenting responsibility needs to submit evidence that they are more likely to make decisions in the best interests of the child.
Decisions on daily welfare
Court rulings have clarified that decisions about non-major topics (daily welfare) are made by the parent with whom the child is spending time, unless a different order is made by the court.
Time Spent with Child (Access)
If it is demonstrated that parents are unable to reach agreement following discussion and mediation about time spent with a child, then a judge will make a decision about how much time a child will spend with each parent.
- primary care occurs when a child spends over 70% of time with one parent (255 nights per year)
- substantial and significant time occurs when a child spends between 30% and 40% of time per year with each parent (between 110 and 146 days per year). Each parent then participates in daily routine activities with the child as well as on special occasions.
- shared care occurs when a child spends between 40% and 60% of nights (between 147 and 219 nights per year) with each parent.
Five other terms are commonly used to describe the time a child spends with parents:
- access occurs where a child spends time during the day with a parent but not overnight stays. Access or visits allow the parent to participate in fun activities but do not allow the parent to participate in the full range of parenting activities.
- overnight stays occur when a child sleeps in a parent’s house, and the parent is involved in the full range of parenting activities
- supervised access occurs where contact is supervised
- structured communication occurs where a parent is permitted to send letters, gifts, and to make phone calls or to send email messages but where personal contact is not permitted
- restraint orders prohibit a parent from contacting a child.
Who a Child Communicates with
The Family Law Act authorises judges to make orders about the type of communication a child may have with a parent.
A judge may order that a parent’s communication with a child be restricted communication or structured communication where the parent is limited to sending letters, cards and photographs but personal contact is prohibited.
A judge issues final orders about parenting arrangements after hearing submissions about the case. A parent can request a change to final orders only if it can be shown that there has been a significant change of circumstances that justifies re-opening the case. Arguments about changed circumstances that have been submitted to Family Law Courts are summarised in Court Rulings.
A parent can draw the attention of a family law court that another person has contravened or not complied with a court order by submitting a contravention form.
CHILD PROTECTION LEGISLATION
State and territory Governments in Australia have passed child protection legislation that governs the operations of Children’s Courts.
Child protection legislation commonly requires named professionals to make mandatory notifications if they have reasonable grounds to be concerned that a child is being or is at risk of being maltreated by child abuse or neglect.
A review by the Australian Institute of Health and Welfare in 2010-2011 found that only 15% of notifications required statutory action by child protection departments, while the other 85% of notifications were not immediately acted upon.
Child Protection Assessments
Child protection assessments examine whether there are risk factors for a child being mistreated.
A child protection assessment can lead to a range of recommendations including:
- that parents are competent parents or adequate parents and there is no need for further involvement
- that a family is a vulnerable family and specific forms of support are warranted
- that children are at-risk and intervention by the child protection department is required.
Child Protection Orders
Children’s Courts are able to issue child protection orders for either a short term care and protection order for about a year, or a long term guardianship order until a child is aged 18 years. Orders are implemented by staff of the Child Protection Department.
Australian law has the following presumptions. Any person who wishes to establish the reverse of a presumption has the onus of submitting evidence to prove their case (burden of proof).
Competence of parents
Australian legislation presumes that all adults are capable of being an adequate parent if provided with reasonable support.
The Australian Family Law Act has a presumption that when parents separate it is in the best interests of their children to have a meaningful relationship with both parents, provided there is no evidence of family violence or maltreatment that reduces the safety of children.
- the child spending significant time with each parent (shared care), and
- parents making joint decisions about major topics that promote the best interests of the child (co-parent).