In making orders in respect of the welfare or upbringing of children, the best interests of the child are the paramount consideration.

In determining what the best interests of a child are the court will consider the following matters in s68F of the Family Law Act:

1. Any wishes expressed by the child and any factors which the court considers relevant to the weight it should give to the child’s best interests;

2. The nature of the relationship of the child with each of the child’s parents and other persons

3. The likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from: (i) either of his or her parents (ii) any other child or other person with whom the child has been living;

4. The practical difficulty and expense of a child having contact 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.

5. The capacity of each parent or of any other person to provide for the needs of the child including emotional and intellectual needs;

6. The child’s maturity sex and background (including any need to maintain a connection with the lifestyle culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

7. The need to protect the child from any physical or psychological harm caused or that may be caused by: (i) being subjected to or exposed to abuse, ill-treatment, violence or other behaviour or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards or may affect another person;

8. The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents;

9. Any family violence involving the child or a member of the child’s family;

10. Any family violence order that applies to the child or a member of the child’s family;

11. 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;

12. Any other fact or circumstance that the court thinks is relevant.

Parenting Orders

A court must consider all the relevant facts and circumstances when making a parenting order.

After the parents of a child separate, either or both of them may apply for interim residence (or what was previously known as custody) until the court can make a final decision about where the child will live. This decision will be made by the court having regard to affidavit material only.

It is established principle however that the welfare of the child will be served best by making an order that preserves the child’s current living circumstances unless it can be shown that the welfare of the child is at risk.

Contrary to popular belief, the court does not ascribe certain roles to males and females.

The Family Court will have regard to motherhood, separation from siblings and maintaining status quo however these can only be considerations and the weight attached to them in each matter will depend on each individual case.

Similarly, there are no matters that will automatically preclude a parent from having residence of their child. At all times the best interests of the child are considered. The court will however take into account matters such as alcoholism or domestic violence and it is likely that the court will determine that the child should reside with the parent who is not an alcoholic or violent.

Matters that are unique to a parent such as homosexuality, non-conventional religions, or transsexuality are to be taken into account and the weight to be attached to those matters will depend on each individual case.

The 6 Considerations that frequently arise in proceedings for a parenting order

1. The status quo
2. The separation of siblings
3. Position of the child’s mother
4. Position of a natural parent
5. The wishes of the child
6. The conduct of the parties

The above matters are all relevant considerations for the court however the weight attached to each factor in every case will differ.

Contact

Non-resident parents do not have a right to have contact with their children however it is generally regarded that it is in the best interests of the child to have contact with their non-resident parent.

The Family Law Act however gives children the right to have contact with their parents.

Generally one parent will have residence of a child, they are known as the resident parent.

The other parent is the non-resident parent and exercises contact with the child.

Both parents however are responsible for the long term care, welfare and development of their children.

Although there are no hard and fast rules in respect of the frequency of contact, the standard regime tends to be fortnightly contact from Friday evening to Sunday evening. This regime can and should be tailored to meet the needs of each family.

There are parents who have shared care of their children. For example, the child may spend half the week with one parent and the balance of the week with the other or they may spend a week with one parent and the following week with the other parent.

If you are able to reach an agreement about residence and contact you can either:

1. Have a solicitor draft consent orders; or

2. Draft the consent orders using the kit that can be downloaded off the Family Court website.

If you are not able to resolve issues of residence and contact with your spouse, you must file an Application for Final Orders in the Family Court and usually an Application in a case. The Application in a case will be necessary in circumstances where the parties cannot agree on where a child should live or the frequency of contact until the final hearing. The interim orders would then only apply until the final hearing. At the final hearing, the court will make a decision about where the child should live permanently as well as the contact that the non-resident parent should have.

Author Bio: Elizabeth Lane has many years experience working with the Family Lawyers Wollongong Prime Lawyers Wollongong.

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