The content of this page discusses the law as it currently stands with respect to Children under the Family Law Act (from 1 July 2006).
The Family Law Act now provides that:
-
both parents are responsible for the care and welfare of their children until the children reach 18.
-
arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
See Section 61DA of the Act for the detail.
How will the Court determine what is in the best interests of a child?
In deciding what is in the best interest of a child, the Act requires a court to take into account two considerations - firstly the primary considerations and additional considerations:
Primary considerations:
-
the benefit to children of meaningful relationships with both parents
-
the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).
Additional considerations:
-
the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
-
the child’s relationship with each parent and other people, including grandparents and other relatives
-
the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
-
the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
-
the practical difficulty and expense of a child spending time with and communicating with a parent
-
each parent’s ability (and that of any other person) to provide for the child’s needs
-
the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
-
the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
-
the attitude of each parent to the child and to the responsibilities of parenthood
-
any family violence involving the child or a member of the child’s family
-
any family violence order that applies to the child or a member of the child’s family, if:
-
whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
-
any other fact or circumstance that the court thinks is relevant.
A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:
If the child’s parents have separated, a court must consider events and circumstances since the separation.
You can read the law about these topics in Section 60CA and Section 60CC of the Family Law Act 1975.
See also Section 64B on the law about parenting orders made by a court, and Section 65DAA which is about how a court is to consider a child spending equal time or substantial and significant time with each parent in certain circumstances.
WHAT TO DO?
If you and your partner are not able to reach an agreement about what is best for your children you should seek help from a qualified counsellor or mediator. You should also obtain legal advice in relation to your particular circumstances.
Contact us for:
After all the future parenting of your children may depend upon the quality of the professional assistance you obtain.
We are committed to obtaining the best possible outcome for you and your family through alternative dispute resolution methods unless Court proceedings are indicated by the facts of your particular case