When dealing with parenting orders (which include residence orders and contact orders), the law’s main concern is to ensure that the child’s best interests are met by being protected from physical or psychological harm and having both parents involved meaningfully in their lives if possible. Many factors are considered by the Family Court in deciding what parenting orders are in a child’s best interests.
Substantial family law reforms in 1996 introduced the concept of ‘parental responsibility’. This replaced the old concepts of guardianship, custody and access. Consequently, the Family Court is now able to make parenting orders that cover not only the issue of who a child will live with and the extent of contact between a child and its parents, but also any other aspect of parental responsibility.
The law encourages both parents and other people interested in the child’s welfare to agree on parenting arrangements such as where the child will live, how the child will be financially supported and the relationship between the child and other family members. Interested people could include grandparents, step-parents, aunts and uncles. Children have a right to spend time with people significant to their care, welfare and development. This can include grandparents and other family members, to the extent it is in their best interest.
The best interests of the child
The Family Court’s primary concern when resolving or determining parenting orders is the best interests of the child. When considering what the child’s best interests are, the most important considerations are:
- protecting children from physical or psychological harm, abuse, neglect or family violence; and
- the benefit to the child of having a meaningful relationship with both parents.
If the two considerations conflict, then the need to protect the child from physical or psychological harm is given greater weight by the Family Court.
The Family Court may also take into account:
- any views and wishes of the child, having regard to their maturity and age. The Family Court or any other person cannot compel a child to give or express his or her views;
- the kind of relationship the child has with their parents and other significant people, including grandparents, step-parents, brothers and sisters and other relatives;
- the extent to which each parent has (or has not) been involved in making major-long term decisions in relation to the child, for example the child’s current and future education, and the child’s religious and cultural upbringing;
- how much time each parent has (or has not) spent with the child and communicated with the child;
- whether each parent has (or has not) supported the child financially, for example by paying child support on time;
- the likely effect of any change to where the child has been living or staying, including separating them from either parent, grandparents, brothers and sisters, other relatives or people important to their welfare;
- the practical difficulty and expense of the child spending time and communicating with each parent, and whether that will affect their right to have a relationship with each parent;
- how much each parent and any other person (including grandparents and other relatives) can provide for the child’s physical, emotional and intellectual needs;
- the maturity, background (including culture and traditions), sex and lifestyle of the child and of each parent, and any other characteristics of the child that the Family Court thinks are relevant;
- the right of a child who is of Aboriginal or Torres Strait Islander descent to enjoy their culture;
- each parent’s attitude to the responsibilities of being a parent and towards the child;
- any family violence involving the child or a member of their family; and
- any other consideration the Family Court thinks is relevant.
The Family Court can also consider the events that occurred since the parents separated. Therefore a parent’s attitude and approach to their parental responsibility following separation may be relevant.
Other things to consider
The law does not require a parent to see their child. However, parents must not stop or interfere with the other parent’s rights or responsibilities under parenting orders.
The Family Court will only consider making orders that the child not see one parent in extreme circumstances, such as where the Family Court considers the child to be at serious risk of harm.
If the Family Court believes a child may be at risk in the care of one parent, it can order that the child spend time with that parent under certain conditions or under supervision by another person who has been agreed to by the Family Court. This can be another relative or at a children’s contact service such as Anglicare. Contact services provide a safe and child-focused environment, where time spent between a parent and child is monitored.
Seek legal advice
You should seek legal advice before deciding on parenting arrangements. Our family lawyers can help you understand your legal rights and responsibilities, and explain how the law applies to your case. We can also help you to try to reach an agreement with the other party without going to the Family Court.
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