A family report is a document written by a family consultant appointed by the Family Court. It provides an independent assessment of the issues in the case and can help the judicial officer hearing the case to make decisions about arrangements for the children. It may also help the parties to reach an agreement. In preparing the report, the family consultant considers the families’ circumstances, explores issues relating to the case and recommends arrangements that will best meet the children’s future care, welfare and developmental needs.
The best interests of the children are the main focus of the report. The report must be formally released by the Court before the parties can receive it. It cannot be shown to anyone other than the parties to the court case and their lawyers unless specifically specified in the report. It cannot be shown to other people, such as other family members, without the Court giving permission for this to happen. This is the case even for people who may have been interviewed, but are not a party to the court case. The family report is the best way for the Court to receive independent evidence about the children’s wishes.
Parenting orders are legally binding arrangements which cover the following:
- Parental responsibility and decision-making
- With whom the child will live
- The amount of time with which a child will be allowed to spend or communicate with the other parent
- Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme)
- Any other issue relating to children following a separation.
Before parties commence proceedings out of the Family Court in relation to children, unless special circumstances exist, they are required to attend mediation with a Family Dispute Resolution Practitioner (“FDRP”). If no agreement can be reached at the mediation the FDRP will issue a certificate that the parties must lodge with the Family Court in order to commence proceedings.
If no out-of-court agreement can be reached, then an application for parenting orders must be submitted to the Family Court. A parenting order may also be applied for by:
- The child
- A grandparent
- Any other person concerned with the care and welfare of the child.
A decision is then made through a court hearing. The court bases its decision on what is in the best interest of the child. It should be noted though, that the vast majority of matters commenced in the Family Court will be resolved before the matter proceeds to a final hearing.
Section 60CA of the Family Law Act 1975 (“Act”), provides that the court has a duty to make parenting orders that are in the best interest of the children.
When considering what is in the best interests of the children, the court is to have regard to the primary considerations and additional considerations as stated in the Act. The primary considerations are:
- To facilitate a meaningful relationship between the children and both of their parents; and
- To protect the children from harm.
These primary considerations often overlap and the court has to weigh up competing proposals e.g. there has been family violence, however, the children should have a meaningful relationship with both parents.
Ultimately, when faced with competing proposals from parents, decisions are made by the court with regard to what is in the best interests of the children.
When the court makes a parenting order in relation to a child, the court must consider whether it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Parental responsibility includes making all the major decisions affecting the children e.g. what school they should attend, what medical treatment they should receive etc.
In the absence of parenting orders, parties are deemed to have equal shared parental responsibility and therefore have a duty to consult with each other in relation to these issues and attempt to jointly reach a decision that is in the best interests of the children.
In some cases there are exceptions that override equal shared parental responsibility (e.g. in cases of child abuse and family violence).