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Caldwell Martin Cox Solicitors : Family Law : Parenting
How the Court approaches issues involving children.
On 1 July 2006 The Family Law Amendment (Shared Parental Responsibility) Act, 2006 came into effect. While the Act has always placed emphasis on the best interests of children following separation of their parents, the changes are aimed at ensuring the best interests of the child are met by enabling children to have the benefit of both of their parents having a meaningful relationship and involvement in their lives, protecting them from physical or psychological harm, receiving adequate and proper parenting so that they may achieve their full potential and ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Family Law Act 1975 makes it very clear that in all matters involving children, the best interests of the child must be paramount.
The term 'equal shared parental responsibility' means that both parents should jointly be responsible for the major decisions affecting the care of their children. Such major decisions include the school they attend, their religion, health issues, where they live and cultural upbringing.
'Equal shared parental responsibility' does not mean that the children should spend equal amounts of time with each parent however the new laws require that parents and courts give consideration to children spending as much time with each parent as possible.
The changes to the Family Law Act do not change any existing parenting Orders made prior to 1 July 2006 and a parent making application to a Court for a change to an existing Order must prove to a Court that any such change would be in the best interests of the children.
New terminology has been introduced with the changes. The terms 'residence', 'contact' and 'specific issues' which replaced the original terms of 'custody', 'access' and 'guardianship' in 1996, have been replaced with the terms 'lives with' 'spends time with and communicates with' and 'parental responsibility'.
Determining the best interests of the child
When considering arrangements in relation to children, you should always put their best interests first. Section 60CC sets out certain factors that a Court must consider in determining the best interests of the child. 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.
Additional considerations include:
- any views expressed by the child and any factors (such as the child's maturity or level of understanding) the Court thinks relevant to the weight it should give to the child's views
- nature of the relationship of the child with each of the child's parents or other persons (including any grandparent or other relative of the child)
- 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
- likely effect of any changes in a child's circumstances such as separation from either parent, any other child, or other person with whom she/he has been living
- practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty or expense would substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
- capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs
- child's maturity, sex and background (including any need to maintain a connection with a 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 relevant
- if the child is an Aboriginal child or a Torres Strait Island 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)
- 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
- any family violence order that applies to the child or a member of the child's family
- making an order least likely to lead to further proceedings in relation to the child
- any other fact or circumstance that the Court thinks relevant.
For further information and assistance please call or email any member of our family law team.
Visit our Reading Room for more information on Family Law issues.
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Law 9000
Lic.Law 20008
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