Jurisdiction Over Children
All children now fall within the jurisdiction of the Family Court or the Federal Circuit Court in Tasmania. So-called ‘test-tube’ children are also brought into this jurisdiction. A child who is born of a married woman but who is not biologically the child of the husband and who has been conceived as a result of artificial insemination or the implantation of an embryo in the woman is deemed to be the child of the couple. It is not necessary that either the embryo or the sperm that produced the child come from the husband or the wife. The same provisions apply in relation to de facto relationships.
Agreeing About Children
Most parents who separate are able to decide between themselves where the children will live without taking matters to court. Whilst this can be a difficult and emotionally draining experience, solutions reached in this way usually suit everybody better than a decision imposed by the Court. Parents are better able than a Court to work out what arrangement suits their children.
The Family Court has compulsory dispute resolution sessions in which parents are encouraged to reach agreement concerning their children. If you do not complete the dispute resolution sessions, it is unlikely that the court will accept the application for a court hearing as dispute resolution proceedings are now compulsory.
There is no need for parents to go to Court about their children. Parents may allow their agreement to remain informal. They may also make a written agreement, called a parenting plan, about the continued care of the children after separation. A parenting plan becomes enforceable like a Court Order when it is registered in the Federal Circuit Court. Parenting plans must be prepared with the consultation of a Family Consultant or with each parent having had independent legal advice. Plans may not be varied once they are registered. If circumstances change they may only be revoked by a whole new parenting plan, or by parenting orders of the Court. For this reason, parents should only sign parenting plans after careful consideration and preferably on the advice of their lawyers.
Actions by Children
Applications may be made by children (or by others on their behalf) concerning their care, welfare or development. This recognises the independent needs and rights of children. For example, a child could seek an order allowing them to live with a person who is not one of their parents, or could seek an order for child maintenance.
The Family Court has power to supervise how parents exercise authority over their children. Children may be able to challenge the exercise of those powers by their parents or legal guardians. For example, if an unmarried pregnant teenager wants an abortion and her parents will not give permission, she may be able to apply to a Family Court judge to overturn their decision.
The Court may order (of its own decision or on the application of a party or the child) that a child be separately represented by an independent children’s lawyer. It may request that the Legal Aid Commission arrange the representation. The independent children’s lawyer promotes the best interests of the child and may present the child’s wishes to the Court. They may cross-examine and call witnesses. They will present direct evidence to the Court about the child and matters concerning the child’s welfare. The independent children’s lawyer is to act impartially and does not take instructions from the child but is required to ensure that the court is fully informed of the child’s wishes although it is not bound to adhere to those wishes if they are not in the child’s best interests.