What the court considers when making parenting orders

Unsettled home life can be extremely challenging for a child and can cause other aspects of their life, such as their schooling or emotional and social development to take a backseat.  When a court considers an application for a parenting order it needs to ensure orders are made in the child’s best interests.

There is a presumption that both parents have equal shared parental responsibility, except where there are issues regarding child abuse or family violence.  If the parents are to have equal shared parental responsibility, the Court must consider whether spending equal time with each of the parents is in the best interests of the child and reasonably practicable in the circumstances.  An independent children’s lawyer may be appointed by the Court to represent a child’s best interests.  For a court to ascertain what the child’s best interests are they consider the following factors.

The primary considerations are:

• The benefit to the child of having a meaningful relationship with both of their parents; and
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

The additional considerations are:

• Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views;
• The nature of the child’s relationship with each of their parents and other persons;
• 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 and to communicate with the child.;
• The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain 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 or her parents; or any other child or other person with whom he or she has been living;
• The practical difficulty and expenses of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
• The maturity, sex, lifestyle and background of the child and of either of the child’s parents;
• If the child is an Aboriginal or a Torres Strait Islander child, the child’s right to enjoy his or her culture and the impact any parenting order would have on that right;
• The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• Any family violence involving the child or a member of the child’s family;
• If a family violence order applies or has applied to the child or a member of the child’s family – any relevant inferences that can be drawn from the order;
• Any other fact or circumstance the court thinks is relevant.

Parenting arrangements can be complex. You should seek legal advice to understand how to seek a parenting order or if you are already in the process of applying for a parenting order. Speak to one of our family lawyers today for further information or advice on parenting arrangements.