Parenting

Decisions about parenting are best made by the parents of the child, in consultation together. There is no need for legal intervention in most cases. However, where there is conflict about parenting arrangements, or concerns about the risk to children, the family law system is able to make orders to resolve these conflicts and to protect children.  

A parent or any other person concerned about the child’s welfare (such as a grandparent) can apply to the court for orders about a range of matters – including return of a child, who the child lives with, time spent with a child, or about parental decision making (called ‘parental responsibility orders’).

Parenting cases – the best interests of the child

When making a parenting order, the Family Law Act requires the court to regard the best interests of the child as the most important consideration. Parents must also use this principle when making parenting plans.

Family Law Act 1975

The Act (section 61DA) makes clear that:

• both parents are responsible for the care and welfare of their children until the children reach 18
• arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Best Interests of the Child

In deciding what is in the best interest of a child, the Family Law Act requires a court to take into account the following:

• What arrangements would promote the safety (including safety form being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child, and each person who has care of the child.
• Any views expressed by the child
• The developmental, psychological, emotional and cultural needs of the child;
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs ;
• The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
• Anything else that is relevant to the particular circumstances of the child.

If a child is an Aboriginal or Torres Strait Islander child the following matters must also be considered

• the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
• to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
• to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
• to develop a positive appreciation of that culture; and
• the likely impact any proposed parenting order under this Part will have on that right

The test – the best interests of the child, not ‘fairness’ between the parties

The court’s role is to arrive at a result that is best for the children. The interests of the adult parties, including partners and family members, are not matters that the legislation says must be taken into account, but rather the children’s interests in these relationships.

The court must provide procedural fairness between the parties – that is not the same as fairness in terms of the result.   If the only way to achieve fairness between the parties is to compromise a child’s interests, the court will not adopt that course. To put it another way, if an outcome is in the child’s best interests, the court may adopt that course even if it is not fair to one party or the other.

When parents are in conflict with the other party, they may often let their hostility for that parent get in the way of their ability to see the parent from the child’s point of view.  The family law system and parenting law is aimed at ensuring that a child can have a meaningful relationship with both parents (provided that the child is protected from risk of harm and of exposure to family violence), and outcomes for children that best promote a good relationship with both parents will be supported, over ‘win-lose’ outcomes.

If you are struggling with these problems in your relationship with the other parent, you can also benefit from ‘parenting after separation’ courses, which are offered by family relationship centres, and which help to improve communication between parents in conflict.