Best interests of the child

In deciding what Orders to make, the Court must consider the best interests of the child as paramount. In deciding what is in the child’s best interests. Since June 2012 the safety of a child has become an important issue in considering the best interests. The Court generally takes the view, that unless there is evidence to the contrary, it is in the child’s best interests to have a relationship with both parents, and that is the view we take.

It is a child’s right to have quality time with both parents unless there are good reasons not to (not in the best interests of the child).

The terminology of residence and contact has changed now the terms are:

  • “Lives with” rather than “custody” – i.e. where the child lives and with whom;
  • “Spends time with” and “communicates with” rather than “contact” – arrangements for the child and the parent with whom the child does not normally live to spend time with and communicate with the child whether in person over the telephone, letter, email or by computer; and
  • “Special issues” – i.e. any particular matter which requires specific mention. For example, sometimes parents want to specify particular arrangements regarding a child’s education, medical treatment or any of the other myriad issues relating to a child’s upbringing and welfare.

Orders can be made in relation to any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.


Parental responsibility

In the absence of a Court Order, each parent has equal shared responsibility for the decision about a child. Obviously if the parents are separated the practical effect of this is reduced as the parent whom the child lives with will automatically assume responsibility for a lot of the day to day issues such as deciding on the child’s bedtime and so on.

However, in the absence of an Order to the contrary, equal shared parental responsibility is retained by both parents, meaning that decisions on major long-term issues should not be made without consulting the other parent first. Major long-term issues include education, religious and cultural upbringing, health and even choice of name.


Parenting Plans

You can formalise or clarify arrangements relating to children by a written agreement called a parenting plan. This can resolve disputes between the parents as to where the child will live or the amount of time the child will spend with the other parent.  We can assist you with preparing this.

If the parents cannot resolve any issues, usually the first port of call will be a Family Dispute Resolution Practitioner (Mediation). The mediator will assist the parties to resolve any outstanding disputes by agreement.


Court proceedings

In the event that the parents are unable to reach agreement, you may issue an application to the Court. Generally, the matter will go to a conference where, if it is unable to be resolved, directions will be given for the preparation of the matter for a Court hearing and an approximate date will usually be given for the hearing.

In urgent and deserving matters the court will make interim orders usually based on affidavit evidence and submissions made to the judge hearing the matter.


Parenting Plans and Consent Orders

In the event that parents reach agreement about these issues (whether by their own efforts or with the assistance of a Counsellor, Mediator or Dispute Resolution Practitioner) they can have that written out in the form of a Parenting Plan or Consent Orders.

A Parenting Plan is a document which need only be written, signed documents freely entered between the parties detailing parenting arrangements for the children. If the parties wish to formalise their agreement by Court Orders, they can make an Application for Consent Orders. A more recent Parenting Plans supersedes an earlier Consent Order.


How we can help

If you require assistance in a family law children matter, please contact us to make an appointment, and we will help you to work out an appropriate way forward to resolve the matter.