All families are different, and when making arrangements for children or applying for a parenting order, it’s important to make sure the arrangements are practical and in the children’s best interests.
When making a parenting order, the court must consider what’s in the children’s best interests. The court will presume it’s in the children’s best interests for parents to have equal shared parental responsibility, unless there has been child abuse or family violence. Equal shared parental responsibility is not the same as equal parenting time.
Children’s best interests
The Family Law Act sets out what the court must consider when making parenting orders. The court must consider what’s in the children’s best interests. It will do this by looking at the following primary (most important) and additional (other) considerations.
The primary considerations are:
- the benefit of children having a meaningful relationship with both parents
- the need to protect children from physical and psychological harm. This includes children seeing family violence, being neglected, or being physically or psychologically hurt.
The need to protect a child from physical and psychological harm, including family violence and abuse, will come first ahead of all other considerations.
The additional considerations are:
- children’s views—the court will look at how much children understand and how mature they are; children don’t have to express views if they prefer not to
- the kind of relationship children have with their parents and other significant people, including grandparents, siblings and other relatives
- how much each parent has participated in making decisions about major long-term issues affecting the children including:
- how much time each parent has spent and communicated with the children during and after the relationship
- whether each parent has fulfilled or failed to fulfil their parental obligations (eg paying child support on time).
- the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare
- the practical difficulty and expense of children seeing each parent, and whether that difficulty will affect their right to have a relationship with each parent; this includes spending time with or communicating with each parent
- how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs
- the children’s and each parent’s maturity, background (including culture and traditions), sex and lifestyle, and anything else about the children the court thinks is important
- Aboriginal or Torres Strait Islander children’s right to enjoy their culture (including with others of that culture)
- each parent’s attitude to the responsibilities of being a parent and towards their children in general
- any family violence involving the children or their family member
- any interim, final, non-contested or police issued family violence orders that include children or their family member
- whether the orders the people involved have applied for will reduce the risk of further court proceedings
- any other considerations the court thinks important.
The court can also look at the:
- history of the relationship and the children’s care
- events and circumstances that have happened since the parents separated.
When making parenting orders, the court doesn’t usually hear directly from children, although it can. Children don’t usually go into court.
Children’s attitudes and views may be made known to the court in a family report or through an independent children’s lawyer.
Equal shared parental responsibility
When making parenting orders, the court will presume it’s in the children’s best interests for the parents to have equal shared parental responsibility, unless there has been child abuse or family violence by a parent or a person who lives with the parent. Other evidence may also convince the court equal shared parental responsibility isn’t in the children’s best interests.
Equal shared parental responsibility means both parents share decision making for major long-term issues about the children.
This includes making decisions about the children’s:
- religious and cultural upbringing
- living arrangements.
It doesn’t include day-to-day decisions about the children’s care, such as what the children eat or wear. If the court decides both parents have equal shared parental responsibility, then they must try to reach an agreement about major long-term decisions.
If the court decides you have equal shared parental responsibility, they must also consider whether it’s practical and in the children’s best interests to spend equal time, or substantial and significant time with each parent.
Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. It includes spending time with children at special events such as birthdays and school concerts.
When deciding whether an arrangement is practical, the court will look at:
- how equal or substantial and significant time will affect the children
- how far apart the people involved live
- each parent’s ability to share care and communicate with one another
- any other consideration it thinks is relevant.
During a family law case, the court may order the people involved in the case to see a family consultant and for a family report to be written.
Family consultants are specialists who give advice to the court in family law cases. They may interview the children, the people involved and other significant people in a child’s life. They may spend time with the child and other people involved. Anything said to a family consultant isn’t confidential and can be used in court as evidence.
Parenting orders and family violence or child abuse
If anyone thinks a child is at risk of family violence or child abuse they must tell the court.
They must also tell the court if they’re aware a child or another member of the child’s family is under the care of, or being investigated by a state or territory welfare authority (such as the Department of Communities, Child Safety and Disability Services).
A person or an independent children’s lawyer must tell the court if they are aware of any family violence orders.
If the court finds there has been family violence or child abuse, it will make orders to protect the children. It may not immediately make a parenting order, or may order an investigation or a report from a state welfare authority. The court will try to make an interim order that protects the children.
If the court considers children may be at risk in one parent’s care, it can order them to spend time or communicate with that parent under certain conditions or under another person’s supervision. The person who supervises can be another relative or someone at a contact service. A contact service is a place where children can be dropped off and picked up or where children can spend supervised time with a parent.
In situations where each person says different things about the family violence and the court can’t decide who is telling the truth, it may order one person’s time with the children to be supervised.
The court may also appoint an independent children’s lawyer who can investigate the matter further. They can make a recommendation to the court about the children’s best interests.
The court will make sure a family counsellor or a family dispute resolution practitioner gives you information about services and options available to you. If there’s an urgent risk of family violence or child abuse, the court may make a parenting order and direct that you receive information later.
A parenting order will override (replace) a family violence order made by your local Magistrates Court if the two orders say different things. The family law courts can also order state and territory agencies (such as a child welfare agency) to give information to the court they may have about family violence, child abuse or allegations of these.
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