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In Australia, children have a right to a meaningful relationship with both parents, as long as the children are protected from harm or abuse.
The Family Law Act 1975 (Cth) sets out the law for parenting cases and the Court must always make decisions that protect and promote children’s safety.
Indeed, the best interests of children is the most important factor when the Court weighs up what Orders to make for sharing the care of children.
Here are some commonly asked questions relating to such parenting matters.
How will my parenting case be decided?
If you’re thinking about a family or relationship change or separation that involves parenting issues, it’s important to remember that the Court always considers a child’s wellbeing as the most important factor.
Many family law parenting cases settle out of Court. Members of the legal profession are guided by the same principles as the Court when advising clients on parenting cases.
How does the Court decide what’s in the best interests of the children?
The Court follows the ‘best interests’ principle and several other guiding principles in the Family Law Act when making parenting Orders.
The overarching principle is to ensure children are protected from physical or psychological harm.
The second predominant consideration is that children have a right to a significant and meaningful relationship with both parents. The Judge may account for these types of factors:
- Views of the children involved
- Relationship between the children and parents, siblings or other relatives
- Extent to which parents have taken or failed to take the opportunity to spend time with the children, communicated with them, or participated in long-term issues of concern to the children.
- Likely effect on children of any change in their circumstances
- Capacity of each parent or other relative to provide for the children’s physical, intellectual and emotional needs.
The Family Law Act also gives the Court the power to consider ‘any other fact or circumstance that the Court thinks is relevant’. This means the Family Court considers each case on its own unique facts.
Do my children’s views matter?
Although children aren’t interviewed by Judges, the Court takes into account their wishes and views and weighs them according to age and maturity.
The Court usually appoints an expert to talk with children and to prepare a report that is submitted to the Court. The Court may also appoint an Independent Children’s Lawyer to protect the children’s interests and to represent their best interests in Court.
Do Courts give equal caring time to both parents?
The Court often makes an Order that both parents have equal caring time and equal shared responsibility when this is in the best interests of the children.
What is the difference?
‘Equal shared parental responsibility’ is the responsibility parents have to make important long-term decisions about the children, in areas like medical treatment for serious conditions, religious and cultural matters, education and living arrangements.
‘Equal caring time’ is when the amount of time that the children spend with each parent is the same, for example, week on week off or when the weeknights are shared equally.
The Court won’t make this decision to share equal time if it’s inappropriate. An example is when family violence or abuse is involved. In these cases, the Court divides the physical caring time in a way that best promotes the children’s overall best interests.
Can I settle my parenting matter out of Court?
Settling parenting matters out of Court is ideal because it avoids stressful and protracted Court proceedings. Family lawyers can work with parents to find a solution and to draft up Consent Orders to be made by the Court.
Parents struggling to reach an agreement may wish to get help from an independent mediator who can help achieve an agreed outcome that’s best for the children without the need to go to Court.
Debra Parker is a family lawyer and one of Canberra’s leading family lawyers (Doyle’s Guide 2015–2020). Watts McCray is one of Australia’s largest firms of family and relationship lawyers.
The many family law specialists on our team are backed by years of experience.
Our lawyers have the skills to provide sound, practical advice about issues such as relationship changes and separation, property and financial matters and parenting arrangements. Watts McCray also provides legal help to resolve matters without having to go to Court. They help with negotiation, mediation, collaboration and arbitration services as well as traditional Court litigation processes. We also help with estate planning and wills.
Call Watts McCray in Canberra on (02) 6257 6347 for more information and for tailored legal services after separation, on issues such as property division, child support, divorce and family violence matters.
Watts McCray has recently been awarded with ‘Best Law Firm of the Year—Australia’ in the Lawyer’s International’s Legal 100, 2020 awards.