Author: Carol Pages, Pages Family Law.

In the first article in our series about making parenting arrangements for your child or children after separation, we provide an overview of the legally relevant matters which may assist you in making your arrangements or preparing for your meeting with your mediator or lawyer.  

Most parenting arrangements after separation are made between the parents themselves.  Some seek the assistance of a mediator or lawyer or both, and some need to make an application to the Court for assistance in resolving their matter. 

Although you may never need to go to Court about your parenting matter, these are the principles your mediator or lawyer will be asking you for information about, and giving consideration to when working with you to resolve your matter.

Objective

The object of the law is that the best interests of children are met, and this includes ensuring their safety.

What does best interests mean?

There are six considerations that must be considered when deciding parenting matters such as who a child will live with and spend time with.

1 – Arrangements to promote the safety of the child and their carer.

The law is focused on minimising the risk of harm, including family violence, abuse, neglect or any other form of harm.  

Where there is a suggestion of harm, safeguards such as supervised time with one parent, drug or alcohol counselling or screening, or other interventions depending on the nature of risk, may be appropriate.

2 – Any views expressed by the child.

Children do not give evidence in parenting matters.  In parenting matters before the Court it is common to have a report prepared by a specially trained psychologist who makes recommendations about children’s arrangements after interviewing both parents and where they are able to give a view, the children.

3 – The needs of the child – includes developmental, psychological, emotional and cultural needs of the child.

The types of information that could be relevant to this section is where a child has additional needs that require special care, where there may be religious differences between parents, or where the child would benefit from being exposed to a particular culture present in their extended family.  

There are separate additional considerations that apply to Aboriginal or Torres Strait Islander children.

4 – The capacity of each parent (or other person seeking an order) to provide for the child’s needs.

This consideration is relevant where a parent or carer has an impaired capacity to provide for the child’s needs.  The history of the parenting matter and how the child’s needs have been met will be relevant.

5 – The benefit to the child of being able to have a relationship with their parents and other significant people, where it is safe to do so.

The benefit to the child of having a relationship with both parents, and extended family, such as grandparents, is relevant to this consideration.

6 – Anything else relevant to the particular circumstances of the child.

This gives families the opportunity to consider any other fact relevant to the care of their child which has not been considered above.  Where parenting matters are decided by the Court, the Court has discretion to consider any other relevant facts at this stage.

Family violence

In considering the six factors above, the law requires a consideration of any history of family violence, abuse or neglect involving the child or a person caring for them, such as the other parent; and any family violence order that currently applies, or has applied to the child or a member of the child’s family.

_________________________________

The content of this article is provided for information purposes only and does not constitute legal advice.  We recommend that you seek legal advice relevant to your own circumstances and we would be happy to assist you.

Carol Pages is the Principal of Pages Family Law and an Accredited Specialist in Family Law and a Nationally Accredited Mediator. If you would like advice about your own separation, please contact Pages Family Law at info@pagesfamilylaw.com.au or on 03 9121 8077.