Key Considerations in Parenting Matters

When trying to work out appropriate parenting arrangements following separation, you hear a lot about “the children’s best interests”. But how do you (or the Court, if you cannot agree with the other parent) work out what is, in fact, in “the children’s best interests”?

 

The terminology “children’s best interests” comes directly from the legislation that governs parenting arrangements following separation – the Family Law Act 1975. The Act itself specifies that the objects of the provisions relating to parenting arrangements are to ensure that the best interests of children are met by:

 

1. Ensuring children have the benefit of both parents having a meaningful involvement in their lives;
2. Protecting children from the physical or psychological harm which comes from being subjected to, or exposed to, abuse, neglect or family violence;
3. Ensuring that children receive adequate and property parenting to help them achieve their full potential; and
4. Ensuring that parents fulfil their duties and meet their responsibilities concerning their children’s care, welfare and development.

 

When deciding any matter involving arrangements for children – whether it be who or where they live, how much time they spend with the other parent or which school they should attend, the Act states that the Court must “regard the child’s best interests as the paramount consideration”.

 

So, how does a Court determine what is in a child’s best interests?

 

There are various considerations that the Court has regard to when determining what is in a child’s best interests; however, there are two primary considerations that are front of mind:

 

1. The benefit to a child of having a meaningful relationship with both parents; and
2. The need to protect a child from physical or psychological harm.

 

It is important to note that the concept of a “meaningful relationship” is not determined by the amount of time a child spends with a parent – for example, there is no clear presumption that weekly contact will lead to a more meaningful relationship if less frequent but longer visits are practical and reasonable. Furthermore, a “meaningful relationship” cannot be confused with an “optimal relationship” – just because arrangements mean that a child and parent cannot spend as much time with one another as they may otherwise wish, this does not stop them from having a meaningful relationship.

 

Additional considerations the Court may have regard to include:

 

1. Views that a child may express, although those views alone will not determine the outcome, and the Court will decide how much weight will be given to those views based on factors such as the child’s maturity and level of understanding;
2. The nature of a child’s relationship with each parent and their extended family;
3. The extent to which parents have taken (or failed to take) the opportunity to be actively involved with the child (including time spent), decision-making about long-term issues and ensuring the child has appropriate financial support;
4. The likely effect of any changes to the child’s circumstances on the child;
5. The practical difficulties of and costs associated with a child spending time with each parent;
6. The lifestyle, culture and traditions of the child and/or their parents; and
7. The capacity of each parent to provide for the child’s needs moving forward, including their ability to support them financially, emotionally and intellectually.

 

 

Simply put, no one factor will determine whether or not something is in a child’s best interests, and appropriate arrangements will differ from family to family. However, it is vital to remember the importance of promoting a relationship between a child and both parents insofar as it is safe for that to occur.

 

At Umbrella Family Law, we will provide compassionate and supportive legal advice on parenting cases based on your circumstances. If you need assistance with a parenting case – whether immediately after separation, as part of a mediation process or whilst the matter is in Court – we can help you navigate the minefield of parenting arrangements and ensure that your child’s best interests are given proper consideration. Click here to contact us for more information on how we can help you.

 

We recommend having a look at the Federal Circuit and Family Court of Australia website for more information. You can also view their Marriage, families and separation brochure here.

 

Contact us today for expert advice.