The Family Law Act stipulates the best interests of the child as the most important consideration when deciding on a child’s living arrangements to be made when parents separate.
When making a Parenting Order in relation to a child, the Family Court will apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parenting responsibility for the child.
Equal shared parental responsibility is different to equal parenting time, which refers to the time which children spend with each parent. Equal shared parenting means both parents have a say in making major long-term decisions about the children. Such major long term decisions would usually include medical issues, the type of education a child is to receive, and religious and cultural matters. Day-to-day decisions, such as what clothes the children wear or what they have for breakfast, are not categorised as major long-term decisions.
Often when parents separate, the most difficult problem to resolve is determining how much time a child should spend with each parent. The court assesses whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent. It is usually seen as beneficial for both parents to have a meaningful involvement in the different aspects of their children’s lives including during the week, on weekends, on holidays and on special occasions.
There is no defined age when the law allows children to decide which parent they would like to live with or spend time with. A Court will take into account a child’s wishes but there is no obligation on a Court to follow those wishes in reaching a decision concerning that child. When making parenting orders, the Court does not usually hear directly from children. However, a child’s views can be brought to the attention of a Court through an Independent Children’s Lawyer or through a Family Report prepared by a Family Consultant such as a Psychologist. A Family Report may be ordered by the Court to assist the Judge better understand the issues in dispute, and the family relationships generally, with the assistance of a child-focused professional. The role of an Independent Children’s Lawyer is to represent the child’s interests in a case and to assist the Judge in deciding what arrangements are in the child’s best interests. The Independent Children’s Lawyer does not “take instructions” from the child but is bound to ensure that the child’s views are put before the Court.