When parents separate, the most important concern is the well-being and care of their children moving forward. Where parents cannot come to an agreement themselves, the Federal Circuit and Family Court of Australia (Family Court) has the jurisdiction to make parenting orders to set out who will have the care of and responsibility for children.

If you are facing a situation where you are likely to become part of parenting proceedings in the Family Court, or if an application has already been made, understanding the way that the Court will make decisions in your matter is crucial. This article explains the Court’s focus on the best interests of the child, which is the guiding principle under Australian family law.

What Orders can the Family Court make in Parenting Proceedings?

The Family Court has the ability to make orders in relation to any aspect of the care, welfare or development of a child. They can make orders in relation to any aspect of parenting save for child support. Specifically, Section 64B of the Family Law Act 1975 (Cth) (the Act) states that the Family Court make any orders in relation to:

• Who the child lives or spends time with;
• Who will be responsible for making decisions for the child and if more than one person, then how they will consult (this is known as parental responsibility)
• Who the child communicates with and how;
• Any maintenance required for a child (this is different to child support which the Court does not have jurisdiction to deal with);
• How changes to the arrangements will be dealt with in the future;
• Any other aspect of the parental responsibility for a child or their care, welfare or development of the child.

The Best Interests of the Child: A Guiding Principle

Section 60CC of the Act sets out how the Family Court determines what is in a child’s best interests. The considerations listed in this section including safety, views of the child, needs of the child (developmental, psychological, emotional and cultural), the benefit of a child having relationships with their family and each parent’s ability to provide for the child’s needs.

The law sets out specific factors that the court must consider when determining the best interests of the child as follows:

Safety of the Child: The Family Court is concerned with ensuring children are safe and protected. The Court will carefully consider the risk to a child where there are allegations of domestic violence, child abuse, or any other form of harm. This is often the most critical consideration if there are concerns about a parent’s behaviour or environment.

Views of the Child: The child’s views will be considered by the Court if they can be ascertained however those views will hold more weight if the child is older and mature enough to express their views with reasoned logic;

Needs of the Child: Developmental, psychological, emotional and cultural needs of children are a paramount consideration. While there are general principles as to developmental and psychological needs of all children as they go through childhood, the Court will consider the particular needs of children with specific cultural or religious backgrounds or where they may have specific needs due to medical conditions;

Parent’s ability to provide for the Child: This consideration is not in relation to finances but in relation to each parent’s ability to put their child’s needs first and provide for their needs. The Court may consider each parent’s actions and views historically to assist them in ascertaining each parent’s attitude to parenthood and supporting the child moving forward.

The benefit to the child of having a meaningful relationship with both parents: The Family Court acknowledges it is usually in the child’s best interests to have a relationship with both parents. Experts recognise that relationships with both parents are important for a child’s emotional, social, and psychological development. Unless there are safety or well-being concerns the Court will aim to ensure that the child’s relationship with each parent is preserved however, it should be noted that this does not necessarily mean spending equal time or living with both parents which is why it is important to get legal advice on your specific situation.

Any thing else relevant to a child: The Court is not limited by the above and can consider anything else relevant to the child’s particular circumstances such as the effect orders will have their relationship with other family members or any changes the orders may cause to the child’s life.

Aboriginal or Torres Strait Islander child: The Court takes a child’s right to engage with their Aboriginal or Torres Strait Islander culture seriously and there are additional sections of the Act dealing with these considerations.

It’s Complicated – Get Advice

When the Family Court makes parenting orders, the primary concern is the best interests of the child however how those interests are considered differs depending on the specific circumstances of each child. The court has to balance the benefits of maintaining relationships with both parents with ensuring that parenting arrangements are consistent and will support the child’s development moving forward. It’s important to keep in mind that every case is unique, and the court’s decisions are always based on the specific circumstances and needs of the child involved.

This area of law is constantly developing which is why it is essential to seek legal advice to understand your rights and responsibilities, and those of your child, if you are navigating a parenting dispute. A family lawyer will help guide you through the process and advocate for the best possible outcome for your child.

Having a lawyer assist you with understanding the above principles as early as possible after separation can be the difference between a drawn-out dispute and settling early on parenting arrangements that work for children. For more information on how you circumstances fit the family law framework, contact us on 0362049000.