Chapters

How a Judge Decides

Courts are required to consider a child or children spending equal time or substantial and significant time with each parent. This is subject to considerations of practicality and the best interests of the child (s65DAA).

The factors a Court must consider when deciding what is in a child’s best interests, for any kind of order relating to the child are found in section 60CC of the Family Law Act. The paramount consideration for the Court when it makes orders about children is what is in the best interests of the child, this consists of two levels. The two primary considerations are:

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s60CC(2)).

Other factors to be taken into account are contained in section 60CC(3):

  • the wishes of the child, considered in light of the child’s age, maturity and other factors that may influence the child;
  • the child’s relationship with each parent and with any other person;
  • the willingness and ability of each parent to facilitate and encourage a relationship between the other parent and the child
  • the existing arrangements for the child and the effect that a change would have on the child;
  • the effect on the child of separation from either parent, other children or any other person;
  • the practical difficulty and expense of a child having contact with a parent;
  • the capacity of each parent to provide for the child’s needs, including emotional and intellectual needs;
  • the child’s maturity, sex and background, including contact with culture or traditions of indigenous people;
  • the need to protect the child from physical or psychological harm;
  • the attitude of each parent to the child and to the responsibilities of parenthood (and willingness to comply with court orders);
  • any family violence involving a 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;
  • any attempt to avoid further litigation;
  • any other fact or circumstance the Court considers relevant.

In practice, the Court is usually very reluctant to move a child from an established situation where they are happy and settled. The Court attempts to avoid unnecessarily unsettling the child. The longer after separation this status quo has existed, the more difficult it is to reverse.
The Court will also be reluctant to split children up, so it will usually not decide to divide up the children between both parents. This situation may change, for example, if children have been separated by their parents while still young and have been apart for a long period.

Parents' Role in Decision Making

Parents are encouraged to reach an agreement about matters concerning the child between themselves, without the intervention of the court. They are encouraged to see the legal system as a last resort, to take responsibility for their parenting arrangements, minimise conflict, and act in the best interests of the child. The best interests of the child is the paramount consideration (s63BFLA).

Children's Wishes

The Court is required to take into account the child’s own wishes, if the child has expressed any, about where and with whom they wish to live. The Court will give these wishes such weight as it considers appropriate in the circumstances. This will depend on the child’s age and maturity, and any other factors that are relevant. There is no particular age at which the child’s wishes will be followed. The Court acknowledges that older children will often do what they please regardless of court orders.

Working out what are the true wishes of children can be very difficult. Parents can become involved in conflict because both claim that the child has expressed a wish to live with them. Both parents may be right, as the child may be caught up in conflicting emotions, and may say what each parent wants to hear. Children are often confused, and just want their parents to get back together.

Children should not be pressured into choosing between one parent and the other. It is better that they be told frankly about the separation and what is happening. Even young children are capable of understanding this. The children should then be told they can express a wish about where they want to live but that they are under no compulsion to do so. The responsibility for working out residence is the parents’ and not the children’s.

To protect children, the Family Law Act prohibits children under the age of 18 from giving evidence in court or on affidavit. There are a number of different ways that evidence of a child’s wishes can be presented, including:

  • family reports by a Family Consultant or any other court appointed expert;
  • affidavits containing statements about their wishes made by children to another person (usually one or both parents will do this);
  • through the child’s own solicitor if a child’s representative has been appointed by the Court.

In extraordinary cases, a child over the age of 10 may be a witness if the judge gives special leave.

Duration of Orders

Unless the orders state otherwise, a parenting order continues to have effect until the child or children:

  • reach 18 years of age;
  • marry or enter a de facto relationship;
  • are adopted by another person.

If circumstances change substantially, an application to vary any parenting order may be made. The Court will be reluctant to disturb the existing situation unless there has been a considerable change in circumstances.

The death of a parent in whose favour a residence order has been made does not automatically make the surviving parent the residence provider of the child. The surviving parent, or another person may apply for the making of a residence order in relation to the child. Where a person who does not have any parental responsibility for the child makes an application, then any person who does have parental responsibility for the child is entitled to be a party to the proceedings (s65KFLA).

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