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 sets out a number of considerations that the Court is required to consider when making a parenting Order. Those considerations help determine what is in a child’s best interests. The two primary considerations in the legislation are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.
In matters where one party asserts that the other parent poses some risk to the child, these two primary considerations are, not uncommonly, in direct dispute. In those circumstances, the Court is required to give greater weight to the need to protect the child from harm or from being subjected to abuse, neglect or family violence.
In addition to the primary considerations, there are a number of additional considerations that the Court is required to consider when determining a child’s best interests, including, but not limited to:
- The child’s views;
- The child’s relationship with each parent and other persons;
- The extent to which each of the parents has taken the opportunity to participate in making decisions in respect of a child or spending time and communicating with the child;
- The practical difficulties and expense of a child spending time and communicating with each parent;
- The ability of each parent to provide for the child, including meeting their emotional and intellectual needs;
- The parents attitude towards the child and to the responsibilities of parenthood;
- The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, to the extent they are relevant; and
- Any family violence involving a child or a member of the child’s family.