AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
3.2 Living/Contact Arrangements and Child Maintenance The Family Law Act governs questions of par - enting arrangements in relation to children born both of a marriage and outside of marriage. That legislation also applies in relation to parenting disputes between same-sex couples and in cir - cumstances where a child may have been born as a consequence of surrogacy arrangements. Genuine Steps Requirement Before Starting Parenting Proceedings Unless an exemption applies – for example, because there is an urgency or where there are risks of family violence, child abuse or safety considerations – a party cannot start a parenting case in the Australian court without first: • complying with pre-action procedures man - dated by court rules; • attempting to resolve a parenting dispute using family dispute resolution; and • taking genuine steps to attempt to resolve the issues in dispute about the child. Decisions about children are governed by the paramount consideration of what is in the best interests of the child. Both during negotiations or during court proceedings about children, parties and lawyers are guided by matters including: • the need to protect and safeguard the inter - ests of the child; • the importance of a continuing safe relation - ship between the child and both parents and the benefits the child gains from the parents co-operating with one another; • the potential damage to a child involved in a dispute, particularly if a child is encour - aged to take sides or take part in any dispute between the parents;
• the importance of identifying issues early and exploring options for settlement; and • their duty to make full and frank disclosure of all material facts, documents and other infor - mation relevant to the dispute. Legal representatives have obligations under the Family Law Act, the court rules and the Court’s Central Practice Direction to assist clients in par - enting matters, and must as early as practicable take steps such as: • advising clients of ways of resolving disputes without starting legal action; • advising clients of the obligations and require - ments imposed concerning family dispute resolution where it is safe to participate in that process; • advising clients of their duty to make full and frank disclosure and the possible conse - quences of breaching that duty; • endeavouring to reach an agreement rather than starting or continue legal action, provid - ed that it is in the best interests of the client and any child; • encouraging clients to engage meaningfully in dispute resolution; and • actively discouraging clients from making ambit claims. Approach to Parenting Proceedings in Australia There is no presumption or starting point, under Australian law, in relation to the living arrange - ments for children. Decisions about parental responsibility, where a child lives, and the time the child spends with the other parent or interested persons are governed by the paramount consideration of what is in the best interests of a child. The Family Law Act sets out a series of factors that the court takes into
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