All issues regarding children are hard and many factors are taken into consideration by the courts. It is a complex and difficult process and you need the best advice possible for the best possible outcome for the children. The following is a general guide on how the issues are handled by the courts.
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A parenting order in relation to a child may be applied for by:
- Either or both of the child’s parents; or
- The child; or
- A grandparent of the child; or
- Any other person concerned with the care, welfare or development of the
The best interests of the child is the paramount consideration.
There are a number of factors that the Court will take into account in determining what is in the best interests of the child. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are numerous additional considerations including:
- Any views expressed by the child and any factors (such as the child’s
maturity or level of understanding) that the court thinks are relevant to the
weight it should give to the child’s views;
- The nature of the relationship of the child with each of the child’s parents;
and other persons (including any grandparent or other relative of the child);
the willingness and ability of each of the child’s parents to facilitate, and
encourage, a close and continuing relationship between the child and the
- 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 (including any grandparent or other relative of
the child), with whom he or she has been living;
- The practical difficulty and expense 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 child’s parents and any other person (including
any grandparent or other relative of the child) to provide for the needs of the
child, including emotional and intellectual needs;
- The maturity, sex, lifestyle and background (including lifestyle, culture
and traditions) of the child and of either of the child’s parents, and any other
characteristics of the child that the court thinks are relevant;
- If the child is an Aboriginal child or a Torres Strait Islander child the child’s
right to enjoy his or her Aboriginal or Torres Strait Islander culture (including
the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on
- 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;
any family violence order that applies to the child or a member of the child’s
family, if the order is a final order or the making of the order was contested by
- Whether it would be preferable to make the order that would be least likely
to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.
When making parenting orders there is a presumption of equal shared parental responsibility. The presumption may be overcome if the court finds that it is inappropriate or not in the child’s best interests to order equal shared parental responsibility.
If the court makes an order for equal shared parental responsibility, the court must then consider whether the child should spend equal time with each parent. If equal time is not reasonably practicable, the court will then consider making an order for substantial and significant time.