Parenting

Family Law

The Family Courts will look at what is in the best interest of the child. Often, parents will confuse their interests with what is in the best interest of the child. Sometimes this is done to spite the other parent and sometimes it is done because the parent thinks that they know best.

The needs of a child

Your child is a combination of you and your former partner. If you tell your child that you hate your former partner, you are in fact telling them that you hate part of them.

A child should not have to hear these things from you. A child needs to feel loved and have the continuing care and support of both parents. Children will worry less if you can both explain to them about what is happening and that you can come to some agreement on caring for them.

Children need to be told that you both still love them and reassure them that this will not change. Do not make children choose who to love. It is also very important to tell your child that they are not to blame for the separation. Often children will think it is them that caused you to break up, especially if they hear you argue or fight.

When your child tells you things such as where they prefer to live or go to school, it is important to listen to them without being judgemental. In other words. Do not conflate your child’s wishes with the wishes of your ex-partner.

The focus is on your child’s needs and overall wellbeing. It is not about what you consider to be fair or what your rights are.

In the best interest of the child

When deciding arrangements about children, such as where they will live, where they will go to school, medical care, religion and how much time they spend with the other parent, it is important to remember that younger children’s need may differ from older children.

Younger children need to see the other parent more often than older children as their concept of time is very different. A few days without seeing the other parent can feel like weeks to them. It can be useful to see how the court views ‘in the best interest of the child’.

The law that applies to divorce and family break ups is the Family Law Act 1975. This provides guidance for you on how the Court determines what is in a child’s best interest.

The court’s primary considerations for determining a child’s best interest, are the benefit to the child of having a meaningful relationship with both of their parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

The Court will give greater consideration to protecting the child from harm (see section 60CC(2) and 60CC(2A) of the Family Law Act 1975).

The court will look at the age of the child in deciding what arrangements will work.

Children need a regular routine so that the child knows what to expect and when. However, there has to be flexibility when making arrangements. For example, friends’ birthdays, special family occasions and the child’s sporting activities.

The court will look to see if it is reasonably practical for the child to spend equal time or substantial and significant time with each parent. Substantial and significant time is meant to include the weekends, school holidays and other days such as mid-week. It must be remembered that it is not just about parents, there are also other significant people in the child’s lives, such as grandparents, aunts and uncles and other relatives

The court will also look at the child’s culture and make sure that the child still experiences and enjoys their culture.

In short, the court can make orders about most things that concern a child and what are in the best interest of that child.

If you can reach an agreement without a lawyer, you will need to file consent orders with the court. We can review your consent orders for you and discuss them with you. Please note that if we do this and you then decide to go to court to ‘fight it out’, we cannot and will not represent either of you. You will have to both find new lawyers.

We can represent you early in negotiations with the other partner and we strongly recommend coming to an agreement without the need of going to court. Going to court is expensive and it is certainly not a pleasant experience for a parent. It should also be remembered that children will also pick up on any difference in your behaviour towards the other parent.

Do not discuss your legal matter with children or in front of children.

Going to court

Sometimes mediation does not work, this can be due to the other parents demands or your demands or a combination of both. However, before you go to court for parenting matters, you will need to produce:

a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act, unless a party submits that an exemption applies under section 60I(9) of the Family Law Act, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under section 60I(9) is required: see rule 4.02 of the Family Law Rules;
a Genuine Steps Certificate, confirming your compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
a Notice of Child Abuse, Family Violence or Risk;
a Parenting Questionnaire;
an Undertaking as to Disclosure in accordance with rule 6.02 of the Family Law Rules;
a copy of any family violence order affecting the child or a member of the child’s family in accordance with rule 2.10 of the Family Law Rule

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