There are many myths in the community
as to how the Family Court determines parenting proceedings
More common ones include:
That the children always live with the mother following separation; or
That the father or other parental figure will get the kids every other weekend and half school holidays; or
That parents are "entitled" to 50/50 care of the kids; or
That children 12 or over can decide their own parenting arrangements.
The Family Law Act 1975 (Cth)
THE FAMILY LAW ACT 1975 (CTH) (“THE ACT”) PROMOTES THE SUBSTANTIAL INVOLVEMENT OF BOTH PARENTS IN THEIR CHILDREN’S LIVES, BOTH IN RELATION TO DECISION MAKING AND IN RELATION TO TIME SPENT WITH THE CHILDREN
The Act promotes both parents being involved in the children lives to the maximum extent possible, consistent with their best interests.
View objects and principles applied in parenting casesview part vII of the act
The objects of the Act include:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
- children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Parenting orders can deal with any of the issues listed in section 64B of the Act, including but not limited to:
- with whom the child lives;
- what time the child spends with the other parent and how they might communicate with them;
- the allocation of parental responsibility for the child;
- maintenance of a child;
- any aspect concerning the care welfare and development of a child.
How a court determines what is in a child's best interestsSection 60CC of the Act
Determining child’s best interests
1. Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
2. The primary considerations are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
2A. In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
3. Additional considerations are:
- any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
- the nature of the relationship of the child with:
- each of the child’s parents; and
- other persons (including any grandparent or other relative of the child);the nature of the relationship of the child with:
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
- to participate in making decisions about major long-term issues in relation to the child; and
- to spend time with the child; and
- to communicate with the child;
c.a. the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
- either of his or her parents; or
- any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of:
- each of the child’s parents; and
- any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
- if the child is an Aboriginal child or a Torres Strait Islander child:
- the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
- the likely impact any proposed parenting order under this Part will have on that right;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
- the nature of the order;
- the circumstances in which the order was made;
- any evidence admitted in proceedings for the order;
- any findings made by the court in, or in proceedings for, the order;
- any other relevant matter;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.
5. If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
6. For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
- to maintain a connection with that culture; and
- to have the support, opportunity and encouragement necessary:
- to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
- to develop a positive appreciation of that culture.
The paramount consideration when making parenting orders is what is in the best interests of the children – not the parents.
Section 60CC of the Act sets out which matters the Court must take into account in determining what is in the best interests of the children.
The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the children from physical or psychological harm, with greater weight being applied to the need to protect the children from harm.
The Court must also have regard to a number of additional considerations including but not limited to the views of the child and the weight that should be applied having regard to the age and maturity of the child, the nature of the relationship between the child and his or her parents and significant others, the likely effect of any changes on the child and the practical difficulty and expense of a child spending time with a parent.
This is a non-exhaustive list of the matters the Court must consider.
Parents each automatically have parental responsibility for their children, subject to any order under the Act.
The starting point for the Court when making a parenting order is to apply a presumption that it is in the children’s best interests that their parents have “equal shared parental responsibility” (“ESPR”), unless there has been abuse of a child (or another child part of the family) or family violence or if there is evidence it would not be in the children’s best interests for it to apply.
Family violence means violent, threatening or other behavior that coerces or controls a member of the family, or causes them to be fearful.
If an Order is made for ESPR, this requires parents to consult with each other when making decisions about any “major long term issues” concerning the children, including but not limited to educations, religion, health, cultural upbringing and name changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The importance of the Court making an Order for ESPR is that the Court must then consider whether the children should spend equal or at least substantial and significant time with both parents – providing that this is reasonably practical and not contrary to the best interests of the children.
“Substantial and significant time” includes weekends, weekdays, holidays and time that allows a parent to be involved in the children’s daily routine and on special occasions.
As is illustrated by this brief explanation, there is no single or common parenting arrangement which is applied as a general rule, and cases are decided on their individual facts and circumstances.
Some cases involve a parties wish to relocate the residence of a child or children to a different geographical area from where they have previously resided.
Some cases involve a party seeking to have a particular medical procedure undertaken on a child, or an order that a child attend a particular school or receive a certain type of education. Other parenting orders can include restraints against parties from engaging in behaviour in the presence of the child which would be contrary to their welfare, for example, the use of illegal drugs or alcohol to excess, or exposing the children to domestic violence.
The overriding consideration in every case, regardless of the issues to be determined, is what will be in the best interests of the child.
Resolving your parenting issues
Mediation is encouraged and required by the Act prior to bringing any Application to the Court for parenting orders, except in limited circumstances such as where there is significant risk to a child, or where there are circumstances of urgency.
Often matters will resolve via negotiation and/or mediation by way of a parenting plan, as opposed to a more formal court order. There are important differences between the two in terms of their enforceability and/or their ability to be changed, and you should seek advice regarding same prior to entering into either arrangement.
If you are concerned about the parenting arrangements which are in place for your child/children, please contact us so that we can give you personalised advice relevant to the unique circumstances of your family.