Complex Parenting Matters: Where The Presumptions Don’t Apply

22nd February 2018

By Lisa Wagner & Prue Hawkes

Are you facing a difficult separation?

Do you need help securing the best outcome for your children?

Are you presently involved in a complex family law parenting matter?

If you answered, “yes” to any of these questions then you should read on.

The Family Law Act presumes it is in a child’s best interests for that child’s parent to have equal shared parental responsibility for that child.  This means it is best for both parents to share the duties, powers, responsibilities and authority in relation to the child.

When orders are made for equal shared parental responsibility a court must consider certain arrangements for the time a child should spend with each parent.  Firstly, whether equal time is in a child’s best interests and reasonably practicable, and secondly, where equal time is not appropriate, whether significant and substantial time is in a child’s best interests and reasonably practicable.

In most cases the presumption for equal shared parental responsibility will apply and the child will have the opportunity to have both parents involved in significant decisions for their life and will be able to spend good, quality time with both parents.

In some cases, the law says that the presumption for equal shared parental responsibility should not apply or can be rebutted by evidence that it would not be in a child’s best interest.  Examples where the usual presumption for equal shared parental responsibility may not apply include:

1.    Circumstances of Family Violence.

2.    Drug or Alcohol Abuse.

3.    Where one or both parents are unavailable to care for the child.

Family Violence

The Family Law Act recognises the reality of family violence and the need to protect a child from being exposed to this.  The Family Law Act says that where family violence exists the usual presumption that parents should share parental responsibility will not apply.

If family violence is alleged it is important to put evidence before the court that supports this allegation.  The best way to put this evidence before the court is through subpoena on Police, hospitals and other independent sources that can provide evidence of a history of family violence.  This is because at the beginning of proceedings a Judge cannot cross examine you or your partner to determine the “real story”.  By providing evidence from independent third parties a Judge is able to obtain an unbiased version of events.

Once evidence has been provided of the family violence it is important to decide what sort of orders should be made.  The primary consideration when making parenting orders is how orders can be made to protect the child from being exposed to further family violence.  In practice this can involve a number of different strategies, two of the more common arrangements we consider are whether orders for supervised time need to be sought or whether changeover can be arranged to avoid an alleged victim coming into contact with an alleged perpetrator of family violence.

Drug or Alcohol Abuse

In 2010 the Australian Institute of Family Studies found that following separation around 20% of fathers and 36% of mothers reported issues with drug or alcohol use.  The misuse of drugs or alcohol has a significant impact on a person’s capacity to care for a child.

Although drug or alcohol abuse does not automatically negate the presumption for equal shared parental responsibility it is likely to be rebutted in such circumstances.  Where there is an abuse of drugs or alcohol it is necessary to consider a number of factors.  In respect of making parenting orders the court must consider how to ensure the child’s safety, and, if possible, how to ensure the child continues to have the benefit of a meaningful relationship with the parent.

Other considerations in the practical running of such cases are how best to demonstrate the use and abuse of drugs or alcohol (or disprove the allegation) and how to address the addiction if it is proved.  Tests can be requested, or taken, to prove or disprove use of drugs or alcohol.  These tests can be submitted to voluntarily or ordered by the court.  Another factor to consider is whether some form of rehabilitation is possible.  This can be a difficult decision to make and how the rehabilitation program is undertaken during court proceedings will need to be carefully considered.

Where one or both parents are not available to care

In some cases, one or both parents are not available to care for the child.  This may be for a number of reasons, including death of a parent, imprisonment, disinterest, or by an order of a children’s court denying parent’s access to the child. In these cases it is often grandparents who step in.

The usual presumption that parents should share parental responsibility simply cannot apply in these circumstances.  By necessity the remaining parent, or third party, will be granted sole parental responsibility.

Grandparents or third parties stepping in to care for a child whose parents are not available can face additional practical difficulties in raising a child without orders of the court.  These difficulties may be with Medicare, Centrelink or simply enrolling the child in school.  Orders can help make it clear that you have parental responsibility for the child and are therefore vested with all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child.

At Doolan Wagner Family Lawyers we have dealt with a range of complex parenting matters.  If you are facing a difficult separation and are concerned about what would be best for your children our family lawyers can help you.  Our experience and compassionate approach means that you can feel confident in the advice we give.  We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station.  Please contact us to find out more or to speak confidentially to one of our experienced family lawyers on 94370010 or email enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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