When looking at future parenting arrangements following the separation of parents, it is the best interests of the child or children that is the paramount consideration. Whether parenting arrangements are being discussed or determined through mediation, negotiation, collaborative law or court proceedings, the best interests of the child or children is always the primary focus.
In our experience, the main priority for clients who have separated or are contemplating separation, is their children and how the separation will affect them. At Doolan Callaghan Family Lawyers, we have the expertise, knowledge and understanding to assist clients in securing the best possible solution for their family.
Whilst in most cases parents, often with the assistance of their lawyers, are able to reach an agreement about the best arrangements for their children, it is worthwhile for parents to understand how a Court deals with disputes when parents cannot agree on parenting arrangements. The considerations the Court takes into account, are the same consideration that we, as family lawyers and also mediators, take into account.
In all parenting proceedings before the Court, including proceedings for final orders, interim orders, relocation orders, applications to vary existing orders and even enforcement orders, the court must determine competing applications for parenting orders by ensuring that any orders made are in the best interests of a child.
When deciding what parenting orders to make, it is the best interests of the children which are the paramount consideration for the Court. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC of the Family Law Act 1975.
The primary considerations are:
- The benefit of the child having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.
There are a number of other additional considerations that the Court can also consider, including but not limited to the following:
- Any views expressed by the child that the Court thinks is relevant;
- The nature of the relationship a child has which each parent, sibling(s) and other relative(s);
- The extent to which each parent has taken, or failed to take, the opportunity to make decisions relating to major long term issues regarding the child, has spent time with and communicated with the child;
- The likely effect any changes in the child’s circumstances including the effect of separation from either parent or relatives;
- The capacity of either parent to provide intellectually and emotionally for the child;
- The practical and financial difficulties for the child spending time with and maintaining personal relations with both parents on a regular basis.
Not all of these additional considerations will apply to every parenting matter and no particular additional considerations have priority over others. The additional considerations a Court may take into account will vary from case to case.
In circumstances where family violence may be present, the Court will prioritise protecting the child from abuse and harm even if it means that the child may not have a meaningful relationship with both parents.
When the Court makes parenting orders, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
In the case of Goode & Goode (2006) it was held that the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA (subject to the qualifications set out). This applies in relation to interim orders, unless the court considers it would not be appropriate in the circumstances to apply the presumption (s 61DA(1) and s 61DA(3)).
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each parent would be in the child’s best interests (s.65DAA(2)).
The Court will assess ‘substantial and significant time’ to include more than each alternate weekend and half of the school holidays. The Court holds the view that it is important for each parent to be involved in the day to day living of your child, including during weekdays. In the case of Dylan & Dylan (2007), the Court held:-
“The concept of substantial and significant time is intended to focus the court’s attention not only on how much time but also on the way that time is spent and whether it is conducive to the development or maintenance of the close and meaningful relationship between parent and child envisaged by ss 60B and 60CC(2)(a). It covers time that includes week days as well as weekends and holidays, allows parents to be involved in the child’s daily routine and to enjoy occasions and events of special significance to either the child or the parent such as sporting events, birthdays or concerts. It includes helping with homework, talking about child related problems, providing emotional and developmental support to children, praising children’s accomplishments. As a general rule, reprimanding or disciplining children for unruly or bad behaviour, is a defining characteristic. It would also involve a child in events such as family weddings and christenings. For some children it may also include special religious or cultural events.”
In the case of KML & Rae (2006) it was held that a parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child’s daily routine.
We understand that each and every family is living in a unique set of circumstances. If you are currently trying to determine what is in the best interests of your child/ren, please contact Doolan Callaghan Family Lawyers for further advice so that we may assist you to understand and determine the options that may be available to you.