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Best Interests & Parenting child arrangements Child Support Child Support Assessments

Why are the best interests of the child important?

When making any Court Orders or varying a Child Support Agreement, the court must always consider the best interests of the child.

Factors which determine whether or not arrangements are in the best interests of the child include:

  • the benefit of the child in having a relationship with both parents,
  • the need to protect the child from harm,
  • ensuring children receive adequate and proper parenting to reach their full potential and
  • ensuring that parents fulfill their duties and perform their responsibilities towards their children.

The principles underlying these objectives are that:

  • children have the right to know and be cared for by both parents,
  • children have a right to spend time on a regular basis with both parents,
  • parents jointly share duties and responsibilities for their children and
  • parents should agree about the future parenting of their children and
  • children have a right to enjoy their culture.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. Our primary goal is to minimise risk to children and ensure proper arrangements are made for their ongoing financial, physical and emotional support. Care and compassion combined with determination and expertise are required to obtain the best results.

Mathews Family Law is an Australian law firm. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

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Best Interests & Parenting Best Interests & Parenting child arrangements Parenting Plans

Best Interests of Child

Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

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Best Interests & Parenting Best Interests & Parenting child arrangements Parenting Plans

Children Want to Be Heard and Kept Informed – and Feel Safe!

In June 2018 the Australian Institute of Family Studies (AIFS) released a study ‘Children and Young People in Separated Families: Family Law System Experiences and Needs’ https://aifs.gov.au/publications/children-and-young-people-separated-families-family-law-system-experiences

The study included interviews with children and young people (10 – 17 years of age) who, as a result of family separation, had experienced the family law system.

Of particular importance to those who were interviewed was:
• For their parents to listen to them and take their views into consideration
• For the family law system to listen to them, particularly about safety concerns
• For the family law system to take them seriously
• To be better informed about the family law system
• Speaking to psychologists and counsellors during the family separation process was helpful.

The information provided contributed to the following recommendations:
• Give children and young people the choice to be involved in decision making
• Keep children and young people informed about the decision making process for example important decisions and dates
• Provide children and young children with a clear explanation of the new parenting arrangements
• Ensure children and young people have access to psychologists and counsellors during the decision making process
• Make sure that children and young children are safe and that there is scope to change the parenting arrangements.

The following video provides direct access to the voices of the children and young people: Quotes from the ‘Children and Young People in Separated Families Study’ – https://www.youtube.com/watch?v=9Vaw_hVOoO8&feature=youtu.be

The process of family separation and rebuilding is undoubtedly difficult. The work of organizations like AIFS provide the ‘science’ that is needed to support developments in the complex space that we work within. Our hats go off to AIFS for their hard work, and to the children and young people who allowed us into their world.

For the best advice about your family law parenting matter or family dispute resolution, contact Vanessa Mathews on 1300 635 529or vanessam@mflaw.com.au

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Best Interests & Parenting Best Interests & Parenting child arrangements Family Violence Family Violence Parenting Plans

Family Violence and Children at Risk

Every day in my practice as a family lawyer, family dispute resolution practitioner and mediator, I hear stories of family violence and children at risk.

Whilst family violence is a tragedy in and of itself, more tragic is the suffering caused to the children who are exposed,

in one way or another – by hearing, seeing, feeling – incidents of domestic violence and/or the aftermath of family violence.

The following article in ‘The Age’ reports the findings of a new study by the Australian Institute Family Studies which confirms what we already know – that children who are exposed to family violence are at higher risk of suffering sexual, emotional and physical abuse.

The issue is ‘What can be done to prevent children from being exposed to family violence, thereby reducing the risk of future abuse for these very same children?’

The Australian Institute of Family Studies report, which will be released on Wednesday, also shows that children exposed to domestic violence from an early age are more likely to experience difficulties at school and have lifelong problems with social and cognitive development.

The report, Children’s exposure to domestic and family violence, draws on local and international research to examine the effects on children raised in abusive households.

It found young people who grew up around domestic violence were at higher risk of other forms of abuse, and that exposure to family violence was the leading cause of homelessness in young people.

“It affects their development in such a global fashion,” AIFS director Anne Hollonds said. “The problems are extensive and they go right across physical and mental wellbeing, cognitive development, which obviously affects academic achievement and employment.”

The study found child abuse often co-existed with domestic violence and that victims of persistent maltreatment in childhood suffered similar effects to trauma, which can lead to aggression, self-hatred and a lack of awareness of danger.

Ms Hollonds said the experience of children exposed to violence at home was not well understood and that a fragmented response meant the most vulnerable children were falling through the cracks.

“What we have is a fragmented patchwork of some services in some areas often operating in quite a siloed way,” she said.

“For example, domestic violence support for women might not always be focusing on the needs of the children. Similarly, adult services for mental health or drug and alcohol issues might not have a focus on the needs of dependent children.

“Unfortunately in some families the problems are multiple, it’s not just violence towards the other parent but there is also various kinds of abuse that the children directly experience. This multi-victimization of children requires our urgent attention.”

The Australian Human Rights Commission released a report on Monday that found up to five children in every classroom had experienced or witnessed family violence.

The National Children’s Commissioner, Megan Mitchell, said children were the “invisible victims” of the domestic violence scourge and that growing up in an abusive household could have a devastating lifelong impact on a person’s mental and physical health.

She said children exposed to family violence might also feel they needed to defend the parent, or be the one to call police or an ambulance.

Crime statistics show Victoria Police were called to 65,400 family incidents in 2013-14 and that children were present in more than one-third of cases.

According to the Australian Bureau of Statistics, more than half of victims abused by their partner had dependent children in their care at the time, with that figure rising to 61 per cent in cases of abuse at the hands of former partners.

Ms Hollonds said a multidisciplinary approach to domestic violence across health, child protection and family services sectors was needed to help the most disadvantaged families, who are often dealing with complex problems but face the most barriers accessing help.

“We have a late reaction policy culture and find it difficult to co-ordinate across portfolios,” she said. “The key is acting earlier because often we don’t find out about the problems people are having until they’ve escalated to a very serious stage, and by then children will have been affected.”

Read more:

The Age:  www.theage.com.au/national/kids-exposed-to-domestic-violence-more-likely-to-suffer-sexual-physical-abuse-20151208-gli3au.html#ixzz3tmyef5Ib

The Australian Institute of Family Studies:  aifs.gov.au/publications/evaluation-2012-family-violence-amendments

Lifeline for counselling and support: www.1800respect.org.au/

If you would believe you would benefit from legal advice about family violence and/or other relationship issues, please contact Vanessa Mathews, Accredited Family Law Specialist Australian family lawyers, Mathews Family Law & Mediation Specialists, Level 2, 599 Malvern Road, Toorak, Victoria, phone 1300 635 529, email enquiries@mflaw.com.au

Vanessa is an expert specialist Melbourne Divorce Lawyer with many years of experience in advising clients about family violence and family law issues.

Vanessa’s clients have kindly been willing to express their satisfaction with her work by writing, and consenting to have published, their testimonials on Mathews Family Law & Mediation Specialists, Melbourne Divorce Lawyers, website:  mathewsfamilylaw.com.au/stories/

Further testimonials as to Vanessa’s work may be found at Google Reviews:  click here

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Best Interests & Parenting Best Interests & Parenting child arrangements Divorce Divorce & Parenting Parenting Plans

5 signs that your child is affected by your divorce

child affected by divorce

Separation and divorce hurts. There’s no getting around that fact.

Without special care and attention, children can be the unintended victims of separation and divorce. For them, their parent’s separation can open a floodgate of emotions, which, for children of any age can be difficult to process and express.

Many of the parents we speak with of course to want to minimise the impact of their divorce on their children, but do not always know what signs to look for. So how can you identify the signs that your child may be being adversely affected by your separation and divorce?

Although every child is unique, there are some clear signs to look out for:

Your child is feeling sad and cries more than usual

Your child could be sad and cry a lot. It might be more difficult than usual to comfort them. They might cry for no reason or react disproportionately to that which to you seem to be minor issues.

The things they cry over may have nothing to do with the separation and divorce however due to difficulty in understanding and accepting the changes to their family, their ability to deal with other issues may be diminished and they can become easily upset.

Your child gets separation anxiety

You or your former partner might find that your children don’t want to leave your side, or that they want to stay with the other parent and resist going with the other parent.

Separation anxiety for children is common when parents separate. Their anxiety is a result of the significant changes they are experiencing and staying close to one or both parents is their way of managing.

Your child is overly emotional and gets angry

When parents separate, it may cause the children to feel uncertain, insecure, worried or anxious. The complex emotions they feel and their inability to express their feelings may be ‘acted out’, such as angry verbal or physical outbursts or uncooperative behavior. Helping your children to express those complex emotions can help to release the anger and improve their wellbeing and anxiety.

Your child is withdrawn and has lost interest in activities

The stress of parents separating can result in children withdrawing into themselves and refusing to engage in activities they have enjoyed in the past. Some children stop hanging out with their friends, preferring to spend all their time in their room, keeping a distance from their family and doing things by themselves.

Decline in school performance

When children are tackling a stressful situation at home, it can directly impact on their performance at school. The stress at home takes so much of their attention and energy and they may have difficulty focusing in class.

At home, they may be anxious and distracted, unable to focus on homework, negatively affecting their academic performance.

The dip in academic performance can result in further anxiety for the child; they feel terrible about falling behind, compounding the situation with another stressful situation. If your child is struggling at school after separation, it is a good idea to inform the school about the situation at home.

Conclusion

Separated parents feel responsible for their child’s suffering. Parents must remain united in their commitment to ensuring that any adverse impact on their children is kept to a minimum, and, if any are identified they are immediately met with an appropriate united response. Conflict between parents will certainly exacerbate the impact on the children, potentially dramatically.

If you detect a dramatic change in your children’s behavior and emotions, and your efforts to support them aren’t helping, please seek urgent help. Early intervention can help both you and your children to get the support required to see you through this difficult time.

Recommended Post: Family Violence and Children at Risk