Select Page

News Articles

Factors considered by the Court in Family Law parenting matters

The Family Law Act specifically outlines that the Court must place the best interests of the child as the most important consideration when making parenting orders.
In determining the best interests of the child, the Court uses the factors outlined in Section 60CC of the Family Law Act.

Author: Emily Grundy-Hyam

20 May 2021

The best interests of the child can be a complex question to ask particularly where each parent can be bringing to the Court different ideas about what is best for their children and in some circumstances neither parent is right or wrong. It’s a juggling exercise for the Judge. Our Family Law Solicitors are experienced in representing clients at all stages of Family Law parenting matters including negotiations, mediations, and Court proceedings.

PRIMARY CONSIDERATIONS

Meaningful relationship with both parents

The Court prioritises the child having a meaningful with both parents provided it is safe and, in the child’s best interests to do so. This is a right of the child and not of the parents. It does not always mean that a 50/50 care arrangement will be preferred by the Court.

Meaningful relationships are those that add quality to the child’s life and are not necessarily based with a time emphasis. The Court may make orders that a child spend time with a parent to encourage and further develop their relationship on a limited time basis.

If the Court finds that the presumption of equal shared parental responsibility applies (that being long term decisions for the child are to be made jointly by the parents), the Court must consider whether equal time or substantial and significant time are in the child’s best interests.  Substantial and significant time has been found to be a mixture of mid-week, weekend, and holiday time with each parent.

Need to protect the child from physical and psychological harm

The Court will prioritise above all else the protection of children from harm including abuse, neglect, or family violence. The Court will look at historical evidence including evidence of the parties and witnesses, and documents produced to the Court under Section 69ZW Orders or Subpoenas.

Risks to the child may include untreated mental health, drug abuse, or alcohol abuse issues. The Court may make Orders such as requiring parties to following the advice of their treating medical practitioners, and Orders requiring random testing for drugs and alcohol.

The Family Law Act requires that the Court must give greater weight to the protection of the child from harm than the benefit of the child having a meaningful relationship with both parents. In some limited circumstances the Court may find that there is no benefit to the child having a meaningful relationship with a parent or that the risk of harm outweighs the potential benefit to the child.

ADDITIONAL CONSIDERATIONS

Views expressed by the child

Some children involved in family breakdowns are not old enough to articulate their wishes or fully understand the ramifications of expressing their views to the Court. However, when a child is able to express their views, the Court will give weight to those views depending upon the age and maturity level of the child. There are several ways the Court may obtain the views of the child in proceedings including but not limited to:

  • Family Reports;
  • Chapter 15 Expert Reports;
  • Appointment of an Independent Children’s Lawyer; and
  • Child Inclusive Conferences.

There is no ‘magic age’ for when a child can decide where they want to live and how much time that they are to spend with a parent.  The weight given to a child’s views will depend upon the circumstances of the family, the emotional development of the child, the child’s age, and the child’s level of maturity and understanding.

Nature of relationships with the child

The Court will look to the quality and significance of the child’s relationships with important people in their life. This includes the parents, grandparents, step-parents, siblings or step-siblings and community ties.

The continuation of such relationships must be found to be in the child’s best interests and all the relevant circumstances are to be taken into consideration by the Court.

Parents participation, time spent, and communication with the child

This factor refers to the parents ongoing commitment and effort to be involved in the child’s life. It is not considered to be within the best interests of the child for parents to refuse to participate in the child’s activities, ignore special events such as birthdays or not make efforts with the child.

Parents fulfillment of parental obligations

The obligations of parents includes the moral and legal obligations to care for the child and to protect their child from harm. Things which are considered within this factor are:

  • Paying child support;
  • Ensuring the child attends school regularly;
  • Ensuring the child is bathed regularly;
  • Ensuring the child is dressed appropriately for events;
  • Ensuring the child is properly supervised;
  • Involvement and participation in the child’s schooling; and
  • Ensuring the child receives appropriate medical attention.

Changes likely to impact the child’s time with parents and significant persons

When making Orders, the Court must consider any likely impact of proposed changes on the child. Changes sought by parents may include a relocation, a change of school, a change of name, or a change to the current arrangements for a child.

Relocations are particularly complex especially where the relocation will mean a change of school and will mean a reduction in the time that a child spends with one of their parents.

The practicality and expense of the child spending time and communicating with parent

This factor focusses on the practical difficulties including travel time and distance, a parent’s work hours, and transport options.

The Court can require one parent to cover travel costs including flights or that both parents share such costs to ensure a child can maintain a meaningful relationship with a parent. COVID-19 lockdowns and restrictions have increased the practical challenges involved particularly in circumstances where a parent lives in an area of concern or where parents live in different states.

The capacity of child’s parents or any other person to provide for the child’s needs

The Court will consider the capacity of each parent and any other person (including grandparents or other relatives of the child) to provide for the child’s needs. The needs of the child not only include their physical needs but all of their emotional and intellectual needs.

The Court considers the mental and physical health of the parents as well as their future capacity to provide for the needs of their unique child.

The maturity, sex, lifestyle and background of the child and parents

The Court will consider the backgrounds and lifestyles of the parents where they impact on the child’s best interests. Some factors that may be considered in relation to their lifestyle may be requirements of their work, risk taking behaviours, and drug and alcohol abuse.

The maturity and sex of the child is looked at to ensure that the physical and emotional needs of the child are being properly understood by the parties and they are parenting in a way which is appropriate to their age and maturity levels.

If the child is of Aboriginal or Torres Strait Islander descent

The Family Law Act specifically identifies the importance of maintaining Aboriginal and Torres Strait Islander children’s links to their culture. The Court will look to the connections the child has with extended family and the wider community in making determinations about parenting orders.

The attitudes of the parents towards the child and parenthood

This factor requires the Court to consider each parents attitude towards their responsibility as a parent and to provide for the child. It is important that parents demonstrate an understanding of their child’s developmental, emotional, and physical needs and are attuned to the views and wishes of their child.

Parents who have not demonstrated a positive and engaged attitude to parenthood in the past, or have not been afforded the opportunity due to lack of time with the child, can participate in Parenting Programs to learn skills to assist.

Any family violence involving the child or member of the child’s family and whether a family violence order applies or has applied

These factors are focused on where there has been a history of family violence and the impact that exposure to and experiences of family violence can have on the emotional wellbeing and development of the child.

The Court can make Orders to protect a child from exposure to family violence and in some circumstances, this may mean no contact or limited and supervised contact.

The outcome least likely to lead to further proceedings

The aim of the family law system is to deal with family matters quickly and on a final basis, to limit the ongoing pressure and stress to parties. A goal of the newly merged Federal Circuit and Family Court is to have matters reached to final hearing within 12 months.

When making Orders, the Court will attempt to make Orders that are least likely to lead to further proceedings in the future.

Any other fact or circumstance the Court thinks is relevant

Other facts and circumstances that are relevant to your matter, will differ for each individual case. There may be unique issues in your matter that the Court should consider when determining what Orders are in the best interests of your child.

Our Family Law solicitors are experienced at advising our clients about outcomes that are in the best interests of children including representation throughout the family law process including negotiations, mediations, and Court proceedings.

Please contact us to arrange your initial consultation with one of our experienced Family Law solicitors.
Contact us today on 02 4220 7100, or email lawyers@alg.com.au