PARENTING ARRANGEMENTS
How parenting decisions are made
The Court has a wide range of discretionary powers when making Orders in respect of children. In the exercise of those powers, the Courts are required to follow the fundamental principle, known as the “paramountcy principle”, which requires that any Orders made by the Court be in the best interests of the children. That is, children’s best interests are paramount.
The Family Law Act 1975 (‘the Act’) sets out a number of considerations that the Court is required to consider when making a parenting Order. The Act was amended on 6 May 2024, and the considerations which help determine what is in a child’s best interests have changed and been consolidated. The primary considerations in the legislation now include:
- What arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm.
- Any views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs.
- The benefit of being able to have relationships with their parents or other people who are significant to them, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
When considering the above, the Court must also consider whether there has been any history of family violence, abuse or neglect involving the child or a person caring for the child, and whether there is any past or current family violence order that applies or has applied to the child or a member of the child’s family. There are also additional considerations if the child is an Aboriginal or Torres Strait Islander child.
The amendments have also removed the legislative pathway previously relied upon in determining the care arrangements, removing reference to equal time and significant substantial time, and the child having a meaningful relationship with both parents. The focus is on the considerations listed above and what arrangements are in the child’s best interests.
People that may make an Application in respect of a child include grandparents, siblings, close friends, other relatives and even, in some circumstances, the child themselves. We have experience acting for all manner of parties in proceedings before the Court. If you or someone you know is concerned about a child or being prevented from spending time with a child, you should contact us immediately to discuss the options available to you.