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Child custody & parenting arrangements

There is a greater need for certainty in post-separation arrangements when there are children involved. There are a range of considerations and it is wise to consult an experienced family lawyer as the legal process involved in determining a parenting agreement can be complex.

how do you determine the child’s best interests?

The factors which assist the court in determining what is in a child’s best interests are set out in Section 60CC. Those factors are broken up into primary considerations and additional considerations.

The primary considerations are:

a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

How do you make decisions for your children?

The Family Law Act states that each parent has parental responsibility for a child under the age of 18 years (61C) and that parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (61B).

Importantly there is a presumption that it is in the best interests of a child for the parents to have equal shared responsibility (61DA). This is not a reference to equal time. It is a reference to making big decisions about your child together. Big decisions include things like where your children will go to school, whether your children need significant medical intervention, the religion your children will practice and what name your children will be known by. Big decisions also include a decision to move further away from the other parent making it more difficult for the children to spend time with that other parent. These issues are called “major long-term issues”. A parent’s decision to enter into a new relationship is not a major long term issue.

what about the time children spend with each parent?

The court sets out a reasonably straight forward but very wordy framework for determining the living arrangements for children. The framework is based on the presumption of equal shared parental responsibility being applied either by agreement or court order.

The court will also consider whether the arrangements are reasonably practical by looking at factors such as:

  • the distance between the parents houses;
  • each parent’s capacity to implement the arrangements;
  • each parent’s current and future capacity to communicate with each other if difficulties arise;
  • the likely impact of the arrangements on the child.

For more information regarding divorce and separation advice and legal assistance, visit our Divorce and Separation page.

What the law says about parenting matters

The law recognises the importance of providing stability and a positive environment for children and the Family Law Act sets out the way in which the law ensures the best interests of the child are protected. Part 7 of the Family Law Act 1975 sets out the legal framework to be applied when dealing with your parenting matter. It is the framework and rules that the court applies. It is also the framework and rules that your lawyer must apply when giving you advice or managing your case with you.

So what does this all mean?

Which factors the court will consider in a matter will depend on the particular circumstances of each case. It is helpful to get legal advice before raising issues in court as some factors will be more relevant than others depending on the circumstances and it may be wise to exercise discretion.

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