In Australia, the Family Law Act 1975 (“FLA”) empowers the Family Court and Federal Circuit Court to make parenting Orders, which usually occurs following the breakdown of a relationship between two parents, who are unable to reach such agreement between themselves, or wish to formalise the agreement they have reached by court Order. The proceedings will usually be commenced by one of the parents, or other relative seeking to spend time and communicate with a child.
Purpose of legislation
As alluded to above, proceedings are able to be commenced under federal law, so that two parents (or other relatives) may reach an agreement as to time and communication with the child, based on the children’s best interests. The FLA that discuss how a court determines what is in a child’s best interests is section 60CC, with the two primary considerations being:
Benefit of having a meaningful relationship with both parents;
Protecting the child from physical and psychological harm, and exposure to or risk of abuse and neglect.
Each State and Territory in Australia also has laws relating to the care and welfare of children. The State laws and courts primarily deal with:
How and when a government welfare agency may remove a child from the care of a parent, and place them in temporary care with a relative or foster carer, pending court proceedings;
State welfare government agency
In NSW, the relevant law is the Children and Young Persons (Care and Protection) Act 1988. The government welfare agency, commonly referred to by its previous name, “DOCS” (Department of Child Services), is now the Department of Family and Community Services, “FACS” for short.
As noted above, FACS can take a child into care, despite any Order made under the FLA.
Purpose of legislation
The State has a role in maintaining the safety, wellbeing and health of children and young people. The objective of the NSW state law is to:
Intervene where the capacity of parents or those responsible for children has been regarded as not providing care and protection necessary for a child’s safety, welfare and well being,
Provide long-term, safe, nurturing, stable and secure environments through permanent placement,
Provide violent-free and exploitation-free environments where institutions, services and facilities are responsible for the care and protection of children,
Provide services that foster the health, developmental needs, spirituality, self-respect and dignity of children and young persons,
Provide assistance to parents/guardians in the performance of their child-rearing responsibilities so as to promote a safe and nurturing environment.
Crossover between the laws: can I commence proceedings for Orders seeking time and communication with my child, when there is a State matter in the Children’s Court?
Yes, it is possible. However, The legislation avoids conflicts as the FLA provides that any Order made under it, cannot override State laws. Judges will make Orders that stipulate the commencement date as being after the child has left the care of a State government agency, unless their consent has been obtained.
Additionally, where proceedings have been commenced for parenting Orders following a separation, and there is already in existence, a matter in the Children’s Court, commenced by a State government agency, section 69ZK of the FLA provides for federal proceedings to be adjourned until the State proceedings have been heard, determined, or otherwise dealt with.
So whilst an application may be filed, if the State proceedings are not finalised before the first court date, or any subsequent court date, the matter will be put over to another date. This may incur some additional costs for court appearances.