#Kerstin Stringer

[legallyblogging-blog]

How does a Court decide where a child will live

“Best interest of the child”

This is an overused legal term which is not defined by the Family Law Act. Let’s be real – how do you define what is in the best interest of a child. Have you ever met two children whom were the same? It is impossible.

When the Court is deciding where the child(ren) are going to live and who they are going to spend time with it must consider the best interest of the child. Clients always ask me “How does the Magistrate even know what is best for my child?”. My answer is simple – they rely on the evidence before the Court and use the legislation to guide them (typical lawyer response).

So how do you consider the best interest of a child you have not met?

Well the Legislation provides matters which must be considered when determining the best interest of a child.

The two primary considerations the Court must consider are:

The benefits of the child of having a meaningful relationship with both of the child’s parents; and

The need to protect the child from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence.

These are the matters which must be at the forefront of the Magistrate’s mind. They are the overarching considerations. Did you notice they are not gender bias? (shock, I know!)

The reason these are primary considerations is because they are at the heart of the objects and principles which ensure the best interest of the children are met. What are the objects I hear you say…here they are:

·         Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and

·         Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence; and

·         Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·         Ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

(Notice all the AND’s – all of these points create the objects. It isn’t a ‘pick and choose’ which suit exercise)

And the principles underlying those objects? Well they are a little warmer and fuzzier:

·         Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·         Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (ie grandparents and other relatives); and

·         Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·         Parent should agree about the future parenting of their children; and

·         Children have a right to enjoy their culture. (Note: Aboriginal and Torres Strait Islander children have a right to enjoy their culture which includes maintaining a connection with culture and to have the support, opportunity and encouragement necessary.

Remember, this is a Family Court – Family being the key word. We are dealing with humans, real people, real lives, children of all ages.  

Is that all the Court considers? NO – these are just the principals, objects and primary considerations. There are a lot more considerations the Court must think about (which I will cover in a future blog).

If you take anything from this blog I want it to be this: Children’s matters are not straight forward. Just because you are a parent does not mean the Court will afford you the time you want with your child (Sounds harsh - I don’t sugar coat). If parents cannot agree at mediation what is in the best interest of their children then the Court will assist by taking into consideration all of the things I have discussed and more.

If you need some guidance about child related matters, contact our office for some honest (frank), realistic (not sugar coated) and easy to understand (plain English) advice.

Kerstin Stringer

Principal Solicitor (Boss Lady)

[legallyblogging-blog]

You can run but you can’t hide...

If I just keep avoiding this problem it will go away, right? WRONG.

 We see all too often people avoiding their problems and hoping they will just go away. Unfortunately, they don’t.

 It is common after a relationship breakdown for one party to “just want this resolved” and the other to drag their feet and try to avoid the issue of separation. It is human nature really. Especially when the break up is messy and complicated. It can be overwhelming and the thought of talking about how to separate finances is daunting and very final.

 But sometimes we have to deal with issues we don’t want to, talk about matters which are unpleasant and uncomfortable and most of all, we need to learn to let go (because who wouldn’t want to get on with life and be happier?)

 So, what happens when one party just won’t co-operate. Is all lost? Is it over? No, it is far from over. The Family Court of Western Australia has powers to make orders, with or without you.

 It is a well-known tactic of spouses – fail to engage in the process, increase the other parties costs and eventually they will give up. Whilst sometimes this happens, it is rare. The fighter in us all will dig their heels in and fight ‘til the end and generally they will be successful.

 If the Family Court of Western Australia is satisfied you have done your best efforts to serve the other party and they are choosing not to engage in the process then they will make orders in their absence and they will, if convinced make a costs order (that is an order for the other party to pay your legal costs).

 Therefore, if you are the party trying to hide you may find you are ordered to pay your spouses costs, you may have your house sold without your consent and you may have passports issued for your children without the need for your signature. But that is unfair I hear you say – well, too bad! You should have engaged in the process and let your voice be heard.

 Ok so the last part is harsh, but it is reality (remember, I don’t sugar coat the law!). The Family Court of Western Australia is made for parties to represent themselves. Superstar lawyers like the team at Mandurah Legal can provide you advice on the Court procedure and what to expect so you can save the expense of having us there but get an idea of what to expect. There is no excuse.

 Kerstin Stringer - LLB, BCrimnlgy&Just, GDLP, LLM (Applied Law)

Boss lady, lawyer, realist.