The best interests of the child are the paramount consideration. Children are entitled to enjoy a meaningful relationship with both parents, but occasionally this is not in their best interests, as it may be necessary to protect them from being subjected to, or exposed to physical or psychological harm. Ideally, your parenting arrangement will incorporate all these concepts, but as described above, there are times when it is not in a child’s best interests to spend time with a parent.
What The Court Considers
The law as it is described in the Family Law Act 1975 is gender-neutral, making no assumptions about who performs what parenting roles.
A presumption of ‘Equal Shared Parental Responsibility’ exists when parents separate, however, equal shared parental responsibility does not mean that the child/ren spends equal time with each parent.
Equal shared parental responsibility means that both parents share the responsibility for making decisions about major long-term issues, such as schooling, major health decisions, and religious observance. It does not mean that a child will automatically be spending “equal time” with each parent. A Court can decide that it is in the best interests of the child to remove parental responsibility from one or both parents because of ongoing conflict, incapacitation, or unsuitability of a parent.
A child’s age is a determining factor in deciding where the child will live – i.e. a breastfeeding baby would not generally be taken from her mother’s primary care. It is also the case that, the older a child gets, the more weight their voice carries. In making decisions about children’s opinions as to who they spend time with, a Court considers:
- The child’s maturity
- Their level of understanding of the situation
- Whether their opinions are well-informed
- Whether there is evidence the child has been unduly influenced
The Role of an Independent Children’s Lawyer
In some situations, the court will appoint an Independent Children’s Lawyer (ICL) to represent the children. The ICL will gather information from sources including teachers, doctors, psychologists, counsellors, police, and child welfare authorities before deciding whether to interview the child or not.
This appointment will often be made in cases where:
- There are allegations of physical, sexual, or psychological child abuse
- There is an ongoing conflict between the parents
- The child is alienated from one or both parents
- There are cultural or religious differences affecting the child
- There is a proposal to separate siblings into different households or take a child overseas
The article is written by the team at The Legal House, who practice in the area of family law and is intended to offer simple explanations to frequently asked questions about whether children’s voices are heard in family law proceedings. It is not legal advice and should not be relied upon as it does not answer questions specific to your situation.
Please make an appointment with one of our family law team, for an obligation-free consultation.
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