Family Law Basics – Parenting Proceedings and a Child’s Best Interests

The law’s approach to parenting matters significantly changed from 2006 with the commencement of the Family Law (Shared Parental Responsibility) Act 2006 prompting amendments to the parenting provisions (Part VII) of the Family Law Act 1975 (“the Act”). These amendments represented a generational change moving away from the traditional views of parenting. It is also influenced a cultural shift focussing on alternative dispute resolutions outside of the Court space with a view to maintaining a co-parenting relationship between parents in the best interests of their children.

The law recognises the importance of parents maintaining civility between them after separation for the wellbeing of their children. The current legal system requires parents to initially engage in alternate dispute resolution such as a Family Dispute Resolution Conference or mediation before making an application to the Court. This provides them with an opportunity to discuss their concerns with one another and amicably resolve the parenting arrangements between them. It is important for parents to try to resolve parenting issues between them and that they learn and adopt dispute management skills given that parents will continue to co-parent their children together and, no doubt, the parents may have differing parenting styles and disputes may arise between them along the way.

If parents are unable to agree and resolve their parenting matter at mediation, then a parent may decide to make an application to the Court. The Court will test the evidence and determine what is in the best interests of the children ensuring that the children will have a meaningful relationship with both their parents and that they are protected from any harm or abuse.

The law provides that parents continue to share responsibility for their children even after they separate, both financially and non-financially. Under the law, there is a presumption for parents to have equal shared parental responsibility for their children. This presumption may be rebutted if it is not in the best interests of the children, especially if there are allegations of child abuse or family violence or some other factor that shows that equal shared parental responsibility would not be best for a child. If the Court makes an Order in relation to parental responsibility, the parties must consult one another and make a genuine effort to make a joint decision on major long-term decisions such as schooling, medical treatment and religion. Parents may act independently in relation to day-to-day decisions when the children are in their care.

Whilst there is a presumption for shared parental responsibility, there is no presumption of spending equal time with your child or children and the law always has to consider arrangements for children that are in their “best interests”. The court must take into consideration the individual circumstances of each case  and in determining what is in a child’s best interests, the law considers section 60CC(2) and (3) of the Family Law Act (Act). Section 60CC(2) provides the primary considerations that a child has a right to have a meaningful relationship with both parents and to be protected from harm. Protecting children from harm has greater priority. 

The law also looks at the following further factors under section 60CC (3):

a)     the views of the child (however an assessment needs to be undertaken as to what weight to be placed on those views);

b)     the relationship of the child with each parent;

c)      the extent to which each parent has taken, or failed to take, the opportunity to make major long-term decisions, spend time with or communicate with the child.

(ca) the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain the child;

d)     the likely effect of any changes in the child's circumstances, including separation from either parent, sibling or significant person;

e)     any practical difficulty and/or expense of spending time and communicating with a child;

f)       the capacity of the parents to provide for the needs of the child;

g)     the maturity, sex, lifestyle and background (including culture and traditions) of the child and parents;

h)     if the child is Aboriginal or Torres Strait Islander and the child’s right to enjoy their ATSI culture;

i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent;

j)       any family violence; 

k)     whether it would be preferable to make the order that would be least likely to lead to further proceedings;

l)       any other relevant fact or circumstance.