The paramount consideration in parenting orders is to make an order in the best interests of the children.
It is the right of the children to have a relationship with and to be cared for by each of the child’s parents, not the right of the parents to have their children with them.
Often results negotiated direct by the parties can result in longer-term successful management of parenting issues upon separation. For this reason, the Family Law Act requires parties to seek to resolve their parenting issues by mediation, unless there are certain factors present which make that possibility difficult. Mediation can be avoided before court proceedings where the matter is not appropriate for mediation (for example where there has been significant violence or control by a party), or where there is urgency, or the potential for family violence.
The court looks at a number of factors relevant to its decision as to what is in the best interests of the children, such as:
- the benefit to a child having a meaningful relationship with both parents;
- the need to protect children from family violence which has a broad meaning to include threats of violence and self harm. It also extends to controlling behaviour and financial abuse;
- the nature of the relationship of the child with each parent and others, such as grandparents, step parents and siblings;
- the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background of the child and of each of the child’s parents (including lifestyle, culture and traditions etc);
- the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the parents;
The court follows a specific pathway to determine what is in the best interests of the children, and what order should be made. The court also determines who should be making decisions about long term issues such as health, schooling, religion and other such issues.
This can often be a difficult process in the first attendance at court (known as an interim hearing). The court can only act upon written affidavits filed, and where there are disputed facts, then it becomes difficult for a court to make a decision, as the court cannot decide who is telling the truth in most instances.
A more rigorous examination is undertaken in a final hearing, and this is where witnesses can be cross-examined.
We will work with you to navigate the process and the many challenges that come with court proceedings.