Do you have a children's matter in the Family Court?
Sometimes parents who have separated cannot reach an agreement in relation to the arrangements for their children, and as a last resort they seek parenting orders to be made by the Family Court. The objects and principles underlying the decisions made by the Family Court are set out in this blog post.
In determining whether to make a parenting order, the paramount consideration is considering what is in the children's best interests. The Family Court determines what is in the best interests of the children, by considering the primary and additional considerations, which are set out below.
As set out in section 60B of the Family Law Act 1975 ("the Act"), the main aim of the Act as it relates to children's matters (see section 66 of the Family Court Act 1997 for de facto couples) , is to ensure that the best interests of the children are met by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles adopted by the Family Court, as set out in section 60B of the Act, are that (except where it would be contrary to the children's best interests):
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Children's Best Interests Paramount Consideration
In determining whether to make a parenting order, the court must regard the best interests of the child as the paramount consideration.
Determining Children's Best Interests
The primary considerations are:
- the benefit to the child of having a meaningful relationship with both of the child's parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from harm, above the benefit to the child of having a meaningful relationship with both parents.
The additional considerations are:
- any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
- the nature of the relationship of the child with each of the child's parents, and other persons (including any grandparent or other relative of the child);
- the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
- the extent to which each of the child's parents has fulfilled, or failed to fulfill, the parent's obligations to maintain the child;
- the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating 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;
- the capacity of each of the child's parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
- 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 (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order under this Part will have on that right;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
- any family violence involving the child or a member of the child's family;
- if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order;
- 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
- any other fact or circumstance that the court thinks is relevant.
If you need family law advice in relation to a parenting matter, contact Applecross Family Lawyers on (08) 9364 9915 or 0474 458 340.