In making parenting 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 s60CC of the Family Law Act.

Primarily, the court has regard to:

1. Recognition of the benefit to the child of having a meaningful relationship with both of the child’s parents; and

2. Recognition of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Then court also considers:

1. Any views expressed by the child;

2. The nature of the relationship of the child with his or her parents and other important people such as relatives;

3. The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

4. The likely effect of any changes in the child’s circumstances on the child’s wellbeing;

5. The practical difficulty and expense of a child spending time with and communicating with a parent;

6. The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs;

7. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents;

8. 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 and the likely impact any proposed parenting order under this Part will have on that right;

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

10. Any family violence and/or 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; and

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

The behaviour of the parents is also taken into account when making parenting orders. In addition to whether the parents have fulfilled their obligation to maintain the child, the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. The court also assesses whether each parent has facilitated, or failed to facilitate, the other parent’s participation in family responsibilities. When making an order the court also takes into account events and circumstances in relation to parenting that have arisen since separation in relation to parenting.

Parenting Orders-Who the child lives with and who the child spends time with (also colloquially known as residence and contact; and custody and access)

The court encourages parents, wherever possible, to come to agreement when making parenting arrangements rather than resorting to contested court proceedings.

If you are able to reach an agreement about who the child/ren should live with and who they should spend time with 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 the time spent with the other parent 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 time that the child/ren should spend with the non-resident parent.

If the matter does proceed to court determination, the court must consider all the relevant facts and circumstances when making a parenting order.

Contrary to popular belief, the court does not ascribe certain roles to males and females and the court starts with the presumption that each parent has equal parental responsibility for their child/ren. However, this does not mean that the court will necessarily make orders that children should equal time with both parents.

After the parents of a child separate, either or both of them may apply for interim orders addressing who the child is to live with and who the child is to spend time with until the court makes a final decision about where the child will live. This decision will be made by the court having regard to affidavit material only.

Similarly, there are no matters that will automatically preclude a parent from having their child/ren live with them. 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 live 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 are:

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 in assessing the best interests of the child/ren however the weight attached to each factor in every case will differ.

Child Custody & Childrens Matters

There is no automatic right for a parent to spend time with their child/ren. However it is generally regarded that it is in the best interests of the child to have contact with their non-resident parent and the Family Law Act gives children the right to spend time and have a meaningful relationship with their parents.

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. However, generally one parent will live with a child, and they are known as the parent that the child lives with; and the other parent who does not live with the child and is known as the parent that the child spends time with.

Although there are no hard and fast rules in respect of the frequency of spending time with the parent that the child does not live with, 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.

However, it is crucial to remember that both parents however are responsible for the long term care, welfare and development of their children.

Author Bio: Danny Saad has many years experience in Family Law working with the experienced Family Lawyers at Prime Lawyers in Sydney.

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