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The Family Law Act 1975 (Cth) at section 60CC sets out what the Court considers when determining what is in the best of interest of children in a parenting dispute.
There are two primary considerations:-
- the benefit to the children of having a meaningful relationship with both of the children’s parents; and
- the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court will prioritise the protection of children from a risk of harm over the need for them to have a meaningful relationship with both parents.
There are also a number of secondary considerations that the Court considers when looking at the best interest of a child.
- the child’s views;
- the relationship of the child with their parents and others;
- the extent that parents or others have spent time, made decisions, or communicated with the child;
- the effect of changing the child’s circumstances;
- the ability of the parties to support the child.
The above are just some of the factors the Court can take into account, and effectively any issue that is relevant to the child’s best interests can be taken into account.
Courts will initially consider whether it is appropriate for both parents to make long-term decisions for the child (called equal shared parental responsibility). Sometimes it is appropriate for one parent to make long term decisions if the parents have no ability to communicate with each other for example.
If the Court puts in place equal decision making, the Court must consider whether it would be in the child’s best interests and if it is reasonably practicable for the child to spend equal time with each parent.
If equal time with each parent is not in the child’s best interests or not reasonably practicable then the Court will consider if significant and substantial time with the non-resident parent is appropriate.
In any other circumstance, the Court will consider what arrangements for living and spending time with each parent is in the children’s best interests.
The factors considered in working out whom children will live with and what time they will spend with the other parent are very complicated and we recommend obtaining an independent legal advice based on your particular circumstances.
Any Court takes the issue of family violence very seriously. Family violence does not have to involve the children for it to be a relevant consideration of the Court.
Domestic/family violence can include emotional and financial abuse, harassment, intimidation and other inappropriate behaviour. You should carefully consider whether you should consult a solicitor to make Application for a Protection Order if you are the subject of domestic/family violence.
Going through a relationship breakdown and attempting to resolve childrens issues can be an extremely stressful time. It may be beneficial to consult your General Practitioner for some options to manage the effect of a relationship breakdown. You may be entitled to free counseling through Medicare or your health insurance. This is also particularly relevant to the children of the relationship who may be in more need of counselling than the parties themselves.
To promote stable and co-operative parenting into the future it is best for parents to agree what time the children will spend with each parent. If the parents are able to reach an agreement then parenting arrangements can be recorded in a non-binding Parenting Plan or binding and final Consent Orders. A family law solicitor will be able to advise on the best option for your particular circumstances.
However, sometimes it is not possible for parents to reach an agreement in relation to the time that the children are going to spend with each parent. In these circumstances the parents are required to first consider mediation either with the assistance of a family law solicitor, through a Family Dispute Resolution Centre or through a service that offers mediation such as Relationships Australia, the Salvation Army or Lifeline.
If no agreement is reached, then you would have to consider instituting Court proceedings. For disputes involving children you are required to file a 60I Certificate from a Family Dispute Practitioner to certify that you have attempted mediation.
In some circumstances, such as urgency, the existence of family violence or that the children are in a situation that is dangerous, it may not be appropriate for the parties to attend mediation. In those circumstances the relevant party can apply directly to the Court, and it is up to the Court whether they deem that your matter is suitable to be listed without the need for a 60I Certificate.
Serious thought should be given to the issue of instituting Court proceedings as it can be a long drawn out, emotionally draining and extremely costly exercise to go to Court and argue over arrangements for what time the children will spend with each parent.