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By Lindsay Nicholson, Solicitor
The Family Law Act 1975 (Cth) requires parties who wish to resolve parental disputes concerning children to satisfy pre-action procedures prior to filing an application for parenting orders. Exceptions apply to matters involving urgency, child abuse or risk of same, family violence or risk of same, and genuinely intractable disputes. Pre-action procedure involves parties engaging in Family Dispute Resolution (“FDR”) in an attempt to mediate a parenting plan or a parenting order. A parenting plan is not legally enforceable but may be desirable for parents who maintain an amicable relationship in matters of parenting. A parenting plan may also be used in later court proceedings as evidence of earlier parental intentions concerning their children. Participation in FDR further allows parties to obtain the necessary section 60I Certificate required for filing with an initiating application when parenting orders are sought from a court of competent jurisdiction (the “Court”). During FDR the parties may also agree to file a Consent Order and accompanying Application for Consent Orders (“parenting orders”). Upon parenting orders being sealed by the Court the orders are legally binding on the parties. This may be a preferable option to parties who require orders which are variously enforceable through an Application Contravention or an Application in a Case. Our next article will discuss in more detail section 60I certificates and potential consequences of failing to participate or failing to genuinely participate in FDR pre-action procedure prior to filing an application for parenting orders with the Court.
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By Lindsay Nicholson, Solicitor
The Family Law Court in deciding whether to make a particular parenting order in relation to a child, must regard the best interests of the child as the paramount consideration (the “Principle”). To this end the Court aims to uphold the Part VII objects, principles and rules of the Family Law Act 1975 (Cth), which is concerned with Children. The Court’s jurisdiction is child-focused, not parent focused, with parents, carers and guardians weighing into the paramount consideration to the extent that they advance the physical and mental health and well-being of children. As a starting point, the Principle promotes the legislative aim of children having a meaningful relationship with both parents, extended family, and other significant figures in their lives; that is, to the extent that such relationships are consistent with the Principle. The Principle requires children to be protected from family violence, neglect, abuse and exposure to same, and this important goal is furthered in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. In short, children matter in children’s matters, and this is reflected in the Principle, which underpins domestic and international legislation aimed at protecting and improving the mental and physical health and well-being of children through fostering meaningful relationships. |
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