Joint Residence Template

(A) Statement Of Legislative Intent

The legislation as amended replaces and supersedes previous case and statutory law regarding joint residence to the extent that it conflicts with or is inconsistent with the joint residence presumption established in paragraph D below.

(B) Public Policy Statement 

The parliament of Australia in recognizing the fundamental right of every child to experience the love, guidance and companionship of both parents in an every day setting  after their separation or divorce, declares that it is the public policy of the Commonwealth to  maximize the time and involvement each parent is willing and able to contribute in raising their children after the parents have separated or dissolved their marriage and to encourage parents to share the rights, duties and responsibilities of child rearing to affect this policy. 

(C) Residence Disputes

In disputes involving the residence of a minor child, the court shall award residence orders according to the best interests of the child in the following order of preference:

(1)  To both parents jointly (pursuant to the rebuttable presumption of joint residence in paragraph D below).

(2)  To either parent.

In making an award to either parent, the court must consider among other factors which parent is more likely to maximize the time and involvement each parent is willing and able to contribute in raising their child and may not prefer a parent because of the parent’s gender or race.

(3)  To any other person deemed by the court to be suitable and able to provide adequate and stable environment.  

Before the Court makes a residence order to a person or persons other than a parent without the consent of the parents, it should make a finding that an award of residence to a parent would be detrimental to the child and that an award to a non–parent is required to serve the best interests of the child. 

Allegations, that a residence order in favour of a parent would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. 

(D) Presumption

There is a rebuttable presumption that joint residence is in the best interests of the child.  

However, the parents may agree to the awarding of sole residence to one parent.

(1)  The presumption in favour of joint residence may be rebutted by a showing that it is not in the best interests of the child after consideration of clear and convincing evidence with respect to all relevant factors in section 68F(2).

(2)  The burden of proof that a joint residence order would not be in a child’s best interest shall be upon the parent requesting sole day to day responsibility.

 

(E) Definition 

 

For the purposes of this part, joint residence means an order investing both day to day and long term parental responsibility in each parent, and providing that residence of the child is shared in such a way as to maximize the time and involvement each parent is willing and able to contribute in raising their child. 

Maximizing is achieved by ensuring that a parent is not denied the ability to spend as   much time as that parent is willing and able to spend, and does not have his or her requested time reduced when it would result in increasing the amount of time the other parent spends to exceed 50%.

A joint residence order obligates the parties to exchange information concerning the health, education and welfare of the minor child and unless allocated or apportioned, the parents shall confer with one another in the exercise of decision-making rights, responsibilities and authority.

(F) Parenting Plan

In making an award, the court in its discretion, may require the submission of a plan for the implementation of the parenting order. 

The court may order mediation in order to assist the parties in formulating or modifying such a plan. 

(G) Cooperation  

A parent who asserts they cannot cooperate with the other parent is required to present a Cooperative Plan setting out the acts that parent will undertake to reduce conflict and increase cooperation to overcome any alleged difficulties     

A parent who fails to present a Cooperative Plan, or fails to engage in the acts set forth in that plan or who engages in any acts that directly or indirectly enhance hostility and constitute a failure to cooperate, is deemed to be acting in contravention of the best interests of the child.

(H) Reasons

If the court declines to award a joint residence order, the court shall state in its decision the specific findings of fact upon which the order for residence, other than joint residence, is based.

An objection by a parent to a joint residence order is not a sufficient basis for a finding that a joint residence order is not in the best interests of a child, nor is a finding that the parents are hostile to each other. That there is conflict between parents is of itself not a sufficient basis for assuming that the child’s best interest will not be served.

A statement that a joint residence order is not in the best interests of a child shall not be sufficient to meet the requirements of this part.

(I) Modification

A joint residence order may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interests of the child require modification or termination of the order.

In an application for modification, the court shall consider evidence of substantial or repeated failure of a parent to adhere to the plan for implementing the joint residence order. 

The court shall state in its decision the reason for modification or termination of the joint residence order if either parent opposes the modification or termination order.

(J) Interim Orders

Unless it is shown to be detrimental to the best interests of the child, the child shall have to the greatest degree practical, equal contact to both parents during the time that the court considers the award of residence.

(K) Ex Parte Orders

The court may enter ex parte a temporary order providing for the residence of a child if:

(a) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and

(b) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.

(c) The party requesting an order under this subsection shall provide the court with telephone numbers where the party can be reached at any time during the day and a contact address.

(d) A copy of the order and the supporting affidavit must be served on the other party in the manner of service of a summons. 

(L) False Accusations 

Evidence of a malicious false report of child abuse or family violence is admissible in a suit between the involved parties regarding the residence of, or contact with a child. A malicious false report of child abuse or family violence made before or during a suit affecting the parent-child relationship shall be grounds for the court to modify the parent-child relationship to restrict further contact to the child by the false accuser.

a)   If a court determines, based on the evidence presented to it, that an accusation of child abuse or family violence made during a residence or contact proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney's fees incurred in recovering the sanctions, against the person making the accusation.  For the purposes of this part, "person" includes a witness, a party, or a party's attorney. 

(b) On motion by any person requesting sanctions under this part, the court shall issue its order to show cause why the requested sanctions should not be imposed.  The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served.

(c) The remedy provided by this part is in addition to any other remedy provided by law.    

(M) Records

Notwithstanding any other provision of law, unless the court orders otherwise, access to records and information pertaining to a minor child, including but not limited to medical, dental, law enforcement and school records shall not be denied to a parent who does not have day to day responsibilities for the child.

 

(N) Change of Address

In the absence of an order to the contrary, a parent in receipt of a residence order shall notify the other parent if he or she plans to change the residence of the child for more than thirty (30) days, unless there is written consent to the change.

To the extent possible, notice must be served personally or given by certified mail, not less than forty–five (45) days before the proposed change in residence. Proof of service must be filed with the Court that issued the residence order. The purpose of the notice is to allow the parents to seek modification of the residence order.

Failure to give notice without good cause may be a factor in determining whether relocation was done in good faith.

 
   

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