How does the Court decide who the Children will primarily live with?
The Federal Circuit and Family Court of Australia must give regard to the best interests of the Children as the paramount consideration in any family law matter.
The Family Law Act 1974 (Cth) allocates responsibility to the parents for making decisions about major long term care welfare and development issues either jointly or to one party solely. If the Court makes an Order for joint decision making then the parents are to (if it is safe to do so) consult with each other and make a genuine effort to come to a joint agreement as to a particular issue. If it is not a major long term issue (as defined within the Act) then the parents are not necessarily required to consult with each other about day to day decisions whilst a Child is spending time with that parent.
In determining what is in the Children’s best interests the Court will consider the following:
- What arrangements can be put in place to promote the safety of the Child and each person who has care of the Child (irrespective of whether that person has parental responsibility for the Child). This includes safety from being subject to or exposed to family violence, abuse, neglect, or other harm;
- Any views expressed by the Child (this is determined as to the Child’s age, level of maturity and the like);
- 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; and
- Anything else that is relevant to the particular circumstances of the Child.
Unless an exemption applies, Parties must participate in dispute resolution prior to commencing parenting proceedings in the Court to obtain a Section 60i certificate. In obtaining the certificate, the Court can see that you have attempted to resolve your parenting matter, although unsuccessful. There are exceptions to this Rule such as where there has been child abuse or family violence or where it would not be appropriate for the parties to attempt any kind of dispute resolution.
If you reach an agreement it can be recorded in a Parenting Plan or formalised in a Court Order. A Parenting Plan is not enforceable and provides little protection, however it goes towards proving the intention of the Agreement that was reached.
Even if you have proceedings in Court, you can at any time reach an agreement with the other parent to formalise your parenting arrangements and in turn have Court Orders.
What are age appropriate Orders?
There has been a great deal of research into attachment theory which relates to the bonds newborn babies form with a primary carer. Accordingly, orders for equal time are not always appropriate, such as in cases involving babies.
Age appropriate orders that gradually increase time recognise the factors that are ultimately in the bests interests of the child.
Age development theory suggests the following (depending on the individual development of the child , the circumstances of separation and the involvement of the parents):
- Babies have a primary carer (usually one parent) and should spend frequent short periods of time with the other parent;
- At about two years of age children can tolerate up to only one night away, two times a week (not in succession) from the primary carer;
- At school age(about five), this can increase to equal time, 3-4 nights on and 3-4 nights off with parents; and
- At about ten, the time apart from the parents can increase to week about arrangements.
