Under the Family Law Act the only person who has rights is the child.
Both the Federal Circuit Court and the Family Court are empowered by the Family Law Act to make orders for the parenting of children. Parties who are interested in the welfare of the child, usually their parents, but also grandparents and others, can make an application to the Court for orders. The Court has discretion to make whatever parenting orders it considers is appropriate however, in coming to a decision the Court must consider what is in the best interest of the child.
Except in the cases of abuse or family violence there is a presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility. That is, the parents should jointly make the major decisions in the child’s life such as what religion the child should follow, whether a serious medical procedure should be carried out, where the child should go to school and where the child should live.
If an order is made for shared parental responsibility, the Court must consider what arrangement for spending time with each parent is in the best interests of the child. In some cases this may mean equal time with each parent, in others it may mean what is referred to as ‘substantial and significant time’. Substantial and significant time means more than just weekends and holidays. The amount of time a child spends with each parent will ultimately depend upon what the Court determines is in the best interests of the child.
To determine what is in the best interest of the child the Court must have regard to the primary and additional considerations set out in section 60CC of the Family Law Act 1975.The primary considerations are firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. In considering the primary considerations the Court is to give greater weight to protecting the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The Court must take into account several other (additional) issues when determining what is in the best interests of the child, including:
- Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give these views, such as the age or maturity of the child;
- The nature of the relationship of the child with each of the child’s parents and with other persons including grandparents or any other relative of the child;
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
- Either of his/her parents; or
Any other child, or another person, with whom the child has been living;
- The practical difficulty and expense of a child having contact with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents regularly;
- The capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs;
- The child’s maturity, sex and background (including any need to maintain a connection to the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islander people) and other characteristics of the child that the Court thinks are relevant;
- The need to protect the child from physical or psychological harm caused, or that may be caused, by:
- Being subjected or exposed to abuse, ill-treatment, violence or other adverse behaviour; or
- Being directly or indirectly exposed to abuse, ill-treatment, violence or other adverse behaviour that is directed towards, or may affect another person;
- The attitude of the child, and the responsibilities of parenthood as demonstrated by each of the child’s parents;
- Any family violence involving the child or a member of the child’s family;
- Any family violence order that applies to the child or a member of the child’s family;
- Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings about the child;
- Any other fact or circumstance that the Court thinks is relevant;
- The Court must also consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
- has taken, or failed to take, the opportunity:
- to participate in making decisions about major long term issues in relation to the child;
- to spend time with the child;
- to communicate with the child; and
- has facilitated, or failed to facilitate, the other parent:
- participating in making decisions about major long term issues in relation to the child; and
- spending time with the child; and
- communicating with the child; and
- has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.