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Selwyn Johnston



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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.


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Written and Authorised by Selwyn Johnston, Cairns FNQ 4870