19 Apr Belperio Clark Adelaide Family Lawyers – Parenting – Best interests of the child
Parenting – Best interests of the child
Written by Bev Clark
As a parent, your primary concern is the best interests of your children. In a family breakdown, the Family Law Act requires the Court to regard the best interests of the child as the most important consideration.
The Act makes it clear that both parents are responsible for the care, welfare and development of their children until they reach 18, and there is a presumption that arrangements that involve shared responsibilities and cooperation between the parents are in the best interests of the child.
In deciding what is in the best interests of the child, the Court takes into consideration:
- The benefit of children having a meaningful relationship with both parents;
- The need to protect children from physical or psychological harm from being exposed to family violence or neglect;
- The views of the child, and factors that affect those views, such as the child’s age and maturity;
- The child’s relationship with each of the parents and extended family;
- The willingness and ability of each parent to facilitate and encourage a relationship between the child and the other parent;
- The likely effect of the child’s changed circumstances, including separation from a parent or a person with whom the child has had a close relationship’;
- Practical issues including the expense of a child communicating with a parent or spending time with them;
- Each parent’s ability to provide for the child’s needs;
- Cultural and lifestyle issues of the parents and the child;
- The attitude of each parent to the child and the responsibilities of parenthood;
- Whether it is preferable to make an order that is least likely to result in future Court applications; and
- Any other fact or circumstance the Court thinks is relevant.
The Court must consider the extent to which each parent has, or has not, met their parental responsibilities, in particular, taking opportunities to participate in decision making about major long term issues with respect to the child, and spending time with the child. Also, parents meeting their obligations to maintain the child, and facilitating, or not facilitating, the other parent’s involvement in these aspects of the child’s life.
When the Court makes a parenting order, it must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility is not a concept that relates to the time the child spends with the parents, but rather the responsibilities of being a parent, and making decisions with respect to the child. The presumption does not apply if there are reasonable grounds to believe that the parent has engaged in abuse of the child or another child who at the time was a member of the parent’s family, or family violence.
If the presumption is not rebutted and the Court orders that parents have equal shared parental responsibility for the child, the Court must then consider whether the child spending equal time with each of the parents would be in the best interests of the child, and whether spending equal time with each of the parents is reasonably practicable.
In the event that the Court considers that it is not in the child’s interest or reasonably practicable for the child to spend equal time with the parents, the Court must consider the child spending substantial and significant time with each of the parents, and whether that would be in the best interests of the child.
Substantial and significant time includes:
- Days that fall on weekends and holidays;
- Days that do not fall on weekends and holidays;
- Time that allows parents to be involved in the child’s daily routine; and
- Occasions and events that are of particular significance to the child; and
- Time that allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what is reasonably practicable, the Court must have regard to:
- How far apart the parents live from each other;
- The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parents;
- The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
- The impact that an arrangement of that kind would have on the child; and
- Other matters that the Court considers relevant.
If you require specific advice in relation to your particular circumstances and/or need guidance and assistance in relation to either negotiating a suitable parenting arrangement for your children after separation, or conducting proceedings in the Court, contact one of our experienced family lawyers.