In Australia, parenting matters relating to the arrangements for children are heard in the Federal Circuit and Family Court of Australia, in matters where the parties have come to an agreement (called consent orders), or where the parties have otherwise had to commence proceedings for orders (called parenting orders).
When a family separates, agreeing to arrangements for the children can be difficult, particularly where there are allegations, which if true, constitute a risk to the child or an issue in dispute.
The Family Law Act 1975 in particular, provides that when making an order, the best interests of the child are paramount and when determining what is in a child’s best interest, the court in its discretion, is to consider the primary and additional considerations of section 60CC.
How then does the court determine what is in the best interests of children?
Primary Considerations
In parenting cases, there are two (2) primary considerations, being:
- The benefit to the child of having a meaningful relationship with each parent; and
- The need to protect the child from harm, whether physical or psychological.
The protection of the child from harm, of course, receives greater weight.
While there is no definition of a ‘meaningful relationship’ under the Family Law Act 1975, the courts have indicated in precedent cases such as that of Marzorski & Albright (2007) 37 Fam LR 518, that it is “synonymous with ‘significant’, which is…a synonym for ‘important’ and to that end, a ‘meaningful relationship’ ought to be “important, significant, and valuable” to the child for “it is a qualitative adjective, not a…quantitative one”.
A meaningful child-parent relationship in this context is not determined by the quantity of time the child spends with each parent but the quality of that time. It is assessed case by case, with reference to the circumstances of that family, noting that what works for one family might not be working for the next. It can be prospective, and the court will consider whether there are prospects of the child having a meaningful relationship with both parents, even if that meaningful relationship did not exist prior to commencing proceedings (i.e. parental alienation cases).
However, not every child will benefit from a meaningful relationship with each parent, particularly if it is alleged that there is a risk to the child that the court is not able to mitigate with orders.
Additional Considerations
The court will then consider the following:
- The views, if any, expressed by the child, with the court determining what weight the child’s views will receive by reference to the child’s age, maturity and understanding of the matter.
- The nature of the child’s relationship with each parent and their family, including maternal and paternal relatives (i.e. grandparents, aunts, uncles, cousins) and friends.
- The extent to which each parent has taken, or alternatively failed to take the opportunity to participate in making decisions about the child, spending time with the child, and communicating with the child.
- The extent to which each parent has fulfilled or alternatively, failed to fulfil their obligations to maintain the child.
- The effect of any change in circumstances on the child, including separation from either parent or any other child, relative or friend.
- The difficulties, in a practical sense, and the expense of a child spending time with and communicating with a parent.
- The background, including lifestyle, culture, and traditions of the child and either parent.
- The capacity of each parent and their family and friends to provide for the needs of the child.
- The allegations of any domestic and family violence involving the child or the child’s family, where there is a Domestic Violence Order (DVO), whether any relevant inferences can be deduced from the conditions of the DVO as to the circumstances, evidence, and findings of a court.
The court will consider section 60CC in determining whether to make an order with respect to parenting arrangements for children. If there is a risk to the child that the court is not able to mitigate with orders (e.g. enrollment in programs, supervised time, restraints against consumption of alcohol), then a meaningful relationship may not be practical.
It is important that parents prioritise their child’s best interest when coming to an agreement about parenting arrangements.
If you are separating, we recommend obtaining independent legal advice. Here, at Madsen Law, we understand the nuances of family law and we will work with you to ensure that your child’s best interests are prioritised during your separation. We are there for you every step of the way and can assist you with identifying the issues in dispute to enable you to come to an agreement that is practical for all parties.
If you would like to schedule an initial consultation, you can contact our office on 07 3209 7704 or email reception@madsenlaw.com.au.
