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CHILD
CUSTODY - THE POLITICAL MINEFIELD
There were almost 53,000 divorces
granted in Australia during 2004. Many of the divorcing parties had minor
children.
The courts are frequently asked to
decide important issues about these children such as "... where will the
children live--with the mother, the father, or with both? "How often will
the children get to see the parent that they do not live with?" "Who
shall they be with during holidays and school breaks?"
Sometimes the parties agree to
certain arrangements that they have worked out and the agreement, referred to as
a stipulation, becomes part of the court order. When parties cannot reach an
agreement, the issues are tried before a judge who, after hearing evidence and
arguments, shapes an arrangement that meets the requirements of law based upon
the individual circumstances of the case.
Australian law requires that the
court, "insofar as is reasonable and in the best interests of the child, to
order the custody award, including liberal visitation rights where appropriate,
which will assure the child the opportunity for maximum continuing physical and
emotional contact with both parents and which will encourage the parents to
share the rights and responsibilities of raising the child unless physical harm
or significant emotional harm to the child, other children, or a parent is
likely to result from such contact with one parent.
"Custody" means
that a parent has legal custodial rights and responsibilities toward the child.
These rights and responsibilities include decision-making concerning the child's
legal status, health care, education, activities and religious instruction.
"Joint custody"
means that both parents have the legal custodial rights and responsibilities
toward a child. Under joint custody, neither parent has legal custody rights
superior to the other. Joint custody does not necessarily mean that the child
spends equal time with or lives with both parents. A parent may have joint
custody even though a child resides with another parent.
"Joint physical care"
means an arrangement in which both parents have joint custody and share
parenting time, maintain a home for the child and provide routine physical care
for the child. As in joint custody, neither parent has legal custody superior to
the other.
On the application of either party, the court shall
consider granting joint custody in cases where the parents do not agree to joint
custody. When determining the joint custody
arrangement that is best for the child, the court must consider:
 | Whether
each parent would be a suitable custodian for the child
|
| Whether
the psychological and emotional need and development of the child will
suffer due to lack of active contact with and attention from both parents
|
| Whether
the parents can communicate with each other about the child
|
| Whether
both parents have actively cared for the child before and since the
separation
|
| Whether
each parent can support the other's relationship with the child
|
| Whether
the custody arrangement is in accord with the child's wishes or whether the
child has strong opposition, taking into account the child's age and
maturity.
|
| Whether
one or both parents agree or are opposed to joint custody
|
| The
geographic proximity of the parents
|
| The
safety of the child
|
| Whether
a history of domestic abuse exists
|
Under certain
circumstances, the court may require the parties to participate in mediation.
While the above sounds good however, in the
real world, the (Federal) Family Court of Australia have become a soul
destroying bureaucratic minefield which is directly responsible for countless
suicides, particularly by non-custodial fathers.
The Family Court has denigrated into
a 'star-chamber' that embarks upon 'witch-hunts' against paternal fathers and grandparents.
AND, who suffers... the very CHILDREN that
this Court is alleged to represent.
The FAMILY LAW AMENDMENT (SHARED PARENTAL RESPONSIBILITY) ACT 2006 (NO. 46, 2006)
passed in the Federal Parliament in 2006 may bring some commonsense into 'Child
Custody' and joint parental responsibilities.
BUT,
is it enough... sadly, for the children, the answer is NO!
For
further clarifications or to download a copy of the amended Act, click... FAMILY
LAW ACT 1975.
