In Australia, if parents are unable to decide on the arrangements for the care of their children following a separation, the Court can make orders about where a child lives and what time they spend with the other parent. The Court is required to make decisions based on the best interests of the children. To determine what is in the child’s best interests, the Court must consider the following:
- What arrangements would promote the safety of the child and each person who has the care of the child. This includes safety from being exposed to family violence, abuse, neglect or any other harm.
- Any views expressed by the child. While a relevant consideration, it is important to know that the child’s views are not determinative of what the Court will decide. The Court recognises the vulnerable position children are in during family break ups and children are not forced to express a view if they do not want to. The Court will also need to decide what weight is given to a child’s views, particularly in relation to their age and development.
- The developmental, psychological, emotional and cultural needs of the child. This includes consideration as to the specific needs of a child and what arrangements would be best suited to their needs.
- The capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs. This includes an assessment as to the specific parenting capacity of the parents to provide for the child’s individual needs. In assessing this, the Court may consider the parent’s mental health history, relationship history and family violence considerations.
- The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where safe to do so. This considers the benefit that the child will gain spending time with the other parent and the wider maternal and paternal family and support networks. The Court will also consider and assess any family violence allegations.
- Anything else that is relevant to the particular circumstances of the child. The Court is not bound by the list above. It can take into account any matter it considers relevant to the child.
The Court is also required to consider the history of family violence, abuse or neglect involving the child and any person caring for the child, along with any family violence orders in place.
If there was family violence in a relationship, or a family violence order in place, it does not necessarily mean that the child will not see one of its parents, however it may mean that there needs to be some safeguards in place to protect all parties such as public changeovers or supervised time.
If the child is of Aboriginal or Torres Strait Islander descent, the Court must also consider the child’s right to enjoy and explore their culture and have support and encouragement to connect with members of the community, culture, country, language and to develop a positive appreciation of their culture. In doing so, the Court must consider the likely impact of any proposed orders on that right.
In most instances, it is important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
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