Children and the Family Law Act

The law must do what is in the child's best interests, must foster a meaningful relationship with both parents, if at all practicable, and must protect the child from the risk of abuse, neglect or harm. Each parent automatically has parental responsibility for a child, which includes the issue of decision making for the child - see section 61C.

When a Court makes a Parenting Order in relation to a child there is a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility (meaning: they must agree about significant decisions relating to the child's future). This presumption does not apply if there is a risk of abuse or family violence and in certain other circumstances.

If the presumption of joint parental responsibility is applied then a Court must consider whether it is in the child's best interests to spend equal time with both parents. If that is not applicable, the Court must then consider whether it is appropriate for the child to spend "substantial and significant time" with each parent - see section 65DAA.

Substantial and significant time must include both weekends and holiday time and weekdays. It also must include both parents being able to be involved in a child's daily routine and in the child's special occasions - see section 65DAA(3).

In deciding any issues in relation to children, what is in the best interests of the child is the paramount consideration of the Court.

The Court must take into account:

• The nature of the relationship between the child and each of his or her parents
• The effect on the child of the separation from either parent or other persons
• The desirability of an effect of any change in the existing arrangements for the care of the child
• The attitudes to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent
• The capacity of each parent to provide adequately for the needs of the child, including emotional and intellectual needs of that child
• The need to protect the child from abuse, ill treatment or exposure or subjection to behavior which psychologically harms the child
• Any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account.