Children in Family Law Proceedings
When there are children in family law proceedings before the Court, it’s important to remember that the interests of the children should be the foremost priority. The Family Law Act 1975 (Cth) states that when parenting orders are made, the paramount consideration to be made is the best interests of the child or children involved.
There are many factors that the Court will consider when determining orders for parenting arrangements – but the most important of all is that the child is given the best possible care.
What are the best interests of my child?
Under the Family Law Act s 60CC, there are two primary considerations that the Court will consider when determining if an order is in the best interests of the child:
- The first is the perceived benefit that could come from the child having a meaningful relationship with both of their parents. In this case, the presumption under s 61DA is that the parents should have equal shared parental responsibility for the child and usually spend equal amounts of time together.
- The second primary consideration to be made by the court is whether there is any need to protect the child from harm, including physical and psychological harm, as a result of being exposed to abuse, neglect or family violence. The presumption of equal shared parental responsibility is subject to any reasonable grounds that the child had been subject to any such harm. If the court is satisfied by evidence that it would not be in the best interests for the child to have a meaningful relationship with one of their parents, alternative parenting orders may be made.
What else does the Family Court consider?
The Court will also take into account a myriad of secondary factors when determining the two primary considerations above. These include, but are not limited to:
- the nature of the child’s relationship with each parent;
- the extent of each parents’ involvement in the child’s life and the making of decisions for major long-term issues;
- the extent to which each parent has maintained the child and their capacity to provide for the child’s needs;
- the likely effect on the child of changing their circumstances and separating them from either of their parents;
- if there has been any history of family violence; and
- any views expressed by the child, if they choose to express such views.
Independent Children’s Lawyers
In some cases, especially where there are allegations of violence or the parties are unable to set aside their conflict, an Independent Children’s Lawyer (‘ICL’) may be appointed. The ICL will act as an impartial figure in the determination of the child’s best interests. Under s 68L of the Family Law Act, the court may order for an ICL to represent the child, or an ICL may be appointed on the application of the child, an organisation or any other person.
The role of the ICL is to act impartially and form an independent view of what course of action would represent the best interests of the child. They will meet with the child in order to better understand their circumstances, and will speak to any of the child’s teachers, doctors and counsellors. The ICL must ensure that any views expressed by the child are heard, but importantly, they are not obliged to act on those views or instructions. They may give the child’s views and wishes certain weight, depending on factors such as the child’s age, emotional state and level of maturity.
The ICL may also arrange for a special family report to be written by a family consultant in order to gain an extra independent understanding of the case.
What will the Family Court do?
After considering the best interests of the child, the Court will make Orders that reflect these interests. These Orders often deal with the living arrangements for the child, how much time the child will spend with each parent, how much communication they will have with each parent and any matters of child maintenance.
When considering if the parents should be granted equal shared responsibility for the child, the Court will consider whether the child spending equal time with each parent would be in the child’s best interests, as well as if it is reasonably practicable. Here, the Court will look at how far the parents live from each other, their current and future capacity to communicate with each other and make arrangements between themselves to implement the order, as well as the impact that such an arrangement would have on the child.
If the Court does not believe that equal time arrangements would be beneficial for the child, they may consider making an order for substantial and significant time spent with each parent. This would still allow each parent to see the child and be involved in their daily routine and important events.
If you are going through a separation involving children, our experienced team of family lawyers are here to assist you through the process. Contact us today to see how we can help.
