COURT CONSIDERATIONS FOR PARENTING ARRANGEMENTS.
Parents are often anxious when going to court to make parenting arrangements for their children. The court considers two primary factors, Safety and Parental Relationships as well as some additional considerations required by the Family Law Act 1975 (“Section 60CC factors”) when making parenting orders.
It is a common misconception that both mum and dad have “rights to the kids”. However it is not the parents (nor any other significant person), but the children themselves who have rights. The following should assist parents in negotiating parenting arrangements that reflect what is best for your children.
The paramount consideration of the court is to protect children from physical and psychological harm and from being subjected or exposed to abuse, neglect or family violence. This need is given priority over all other considerations.
Should you be concerned for your children’s care, safety and/or wellbeing in the household of, or association with other people the children are spending time with, you need to raise those concerns with the court.
If the children are in immediate danger or at risk of being placed in immediate danger, you should contact the police and/or the department of child safety for assistance. In such circumstances, and where you are not being permitted to, or in a position to, protect the children from the harm, an urgent application to the court can be filed, seeking orders to remove the children from that harm and place them in a safe environment.
You may also need to consider whether an application for a protection order is relevant in your circumstances. Please see our article “Protection Orders” and how these may help to protect you and your children.
2. PARENTAL RELATIONSHIPS
The next consideration is the benefit of the children having a meaningful relationship with both parents. The court recognises that both parents are important, and the children’s relationship with them should to be fostered and encouraged. The children have a right to know both parents.
This does not necessarily mean the children should automatically spend an equal amount of time with each parent; it is more focused on the quality of the relationship, ensuring it continues, or is able to be built.
3. ADDITIONAL CONSIDERATIONS
After the primary considerations have been taken into account, the Court also takes into account the following additional considerations. As each family is different, each outcome is considered on a case by case basis taking into account the following:
- Expressed views of the child;
- Nature of the child’s relationship with each parent. In addition relationship with other persons such as grandparents, siblings including step, half, and adopted siblings;
- Extent to which each parent has taken, or have failed in taking the opportunity to participate in decision making for the child;
- Extent to which each parent has fulfilled or failed in their obligation to maintain the child;
- Effect of changes to the child’s circumstances. For instance the likely effect of the child being separated from either parent or any other child or relevant person in their life;
- Practicalities, difficulty and expense of a child spending time with and communicating with a parent. Whether this will substantially affect the child’s right to maintain personal relationships and contact with both parents;
- The capacity of each parent and / or any other person, to provide for the needs of the child, including emotional and intellectual needs;
- The maturity, sex, lifestyle and background or other characteristics of the child and both parents;
- The child’s right to enjoy their 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 parent; and
- Any family violence involving the child or a member of the child’s family.
The court further considers:
Any family violence order that applies or has applied to the child or a member of the child’s family and relevant inferences that can be drawn from that order, and
Conditions that would be least likely to lead to the institution of further proceedings in relation to the child or children.
We encourage you to obtain legal advice when negotiating parenting arrangements with the other parent. To ensure you achieve the best possible outcome for your children, please contact us for a confidential discussion around your circumstances.