After the breakdown of a marriage or a de facto relationship, the care of any children of the relationship must be negotiated. If you are applying for a divorce order, it will not be granted until proper arrangements have been made for the care of the children, as outlined in section 55A of the Family Law Act 1975 (Cth) (“the FLA”). The Family Court (“the court”) will ascertain what is in the child’s best interests, and ensure the parenting orders reflect this. 

Section 60D of the FLA states that advisors (who can include legal practitioners, family counsellors, family dispute resolution practitioners or family consultants) are obliged to inform anyone involved in children’s matters that the best interests of the child are the most important consideration. 

How are the best interests of the child determined?

The best interests of the child can be determined with reference to the objects and principles of Part 7 of the Family Law Act.

The key provisions are section 60B(1)(a) which dictates that children should have a meaningful relationship with both parents, and that each parent should be involved in the child’s life to the extent that is in their best interests, and section 60B(1)(b) which states that children should be protected from any harm, abuse, neglect or family violence. 

The court will prioritise protecting children from any risk of harm, abuse, neglect or family violence over ensuring that the child has a relationship with both parents. The court may make an order for supervised time between the child and a parent who poses a risk. 

How the child’s best interests influence parenting orders

Under section 65DAA of the FLA, parenting orders may provide that parents are to have equal shared parental responsibility for a child, however, this does not necessarily mean an order will be made for equal time. The court will consider whether an order for equal time is in the child’s best interests, and if it is ‘reasonably practicable’. The latter can include an assessment of the parents’ jobs and the geographical distance between the parents, and whether it is overall practical for them to spend equal time with the child. The court does not consider long and frequent travel between parents’ homes to be in the best interests of a child. 

Parental responsibility is defined as all the duties, powers and responsibilities which, by law, parents have in relation to children (section 61B FLA). Section 61DA of the FLA provides that there is a presumption of equal shared parental responsibility. To find out more about parental responsibility, click here to read one of our older blog posts. 

Other measures to protect children

Under section 60CE of the FLA, children cannot be called as a witness in court, and are not required to express any views about the proceedings. However, there are a number of ways that the views of children can be taken into account. Section 62G allows for reports by a Family Consultant in parenting proceedings, who can interview a child and summarise their views. 

Section 68L of the FLA allows for an independent children’s lawyer to be appointed to represent the best interests of the child throughout the proceedings. They can make submissions to the court about what is in the best interests of the child, however, they are not obliged to act on the child’s instructions. 

Children are typically excluded from family law proceedings as much as possible, as exposure to disputes between a separated couple can harm the relationship between a child and their parent. If you are involved in family law proceedings and seeking parenting orders, it is important to remember that the court will aim to protect the wellbeing and care of your children.

To speak to one of our qualified family lawyers about parenting issues, call our office on (08) 8223 3199. 

This blog post was researched and written by our Law Clerk, Alice McKay.