Want custody of your child?
Before taking this step, you should first consider what it is that you are after.
Do you want the legal power to make important decisions for your child?
If so, you will be seeking “parental responsibility”.
Being granted parental responsibility for a child will give you the power and authority to make decisions in relation to the child, such as what School the child will go to, the religion that will be practiced, medical decisions or where the child will live.
Parental responsibility is presumed to reside with both parents, unless you can provide the Court with a serious reason as to why this should not occur (e.g. the other parent has abused the child or has been involved in domestic violence). Should parental responsibility be shared, both parents will need to consult with each other regarding the important decisions.
Do you want to spend more time with your child?
This is a separate consideration for the Court to who has parental responsibility. In making a decision, the Court will consider what is in the child’s “best interests” and what arrangement is “reasonably practicable” for the child.
To determine what parenting arrangement is “reasonably practicable” for a child the court must have regard to:
- how far apart the parents live from each other; and
- the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
- the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
- the impact that an arrangement of that kind would have on the child; and
- such other matters as the court considers relevant.
What is in the child’s best interests?
The Family Law Act sets out the mechanism at arriving at what is in the child’s best interests.
The objects of the Act are to ensure that the best interests of children are met by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It is against the backdrop of the above objects and considerations that the Court’s takes into account a number of other “considerations” in working out what is in a child’s best interests. These considerations are broken down into “primary considerations” and “additional consideration”.
The “primary considerations” are as follows:
- the benefit to the child of having a meaningful relationship with both of the child’s 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 “additional considerations” are as follows:
- any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
- the nature of the relationship of the child with: (1) each of the child’s parents; and (2) other persons (including any grandparent or other relative of the child);
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (1) to participate in making decisions about major long-term issues in relation to the child; and (2) to spend time with the child; and (3) to communicate with the child;
- the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (1) either of his or her parents; or (2) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of: (1) each of the child’s parents; and (2) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
- if the child is an Aboriginal child or a Torres Strait Islander child: (1) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (2) the likely impact any proposed parenting order under this Part will have on that right;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following: (1) the nature of the order; (2) the circumstances in which the order was made; (3) any evidence admitted in proceedings for the order; (4) any findings made by the court in, or in proceedings for, the order; (5) any other relevant matter;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.
It is only after the Court has taken into account all of the above, that it will make a decision as to:
- whether the child will live with one or both parents; and
- how much time a child will spend with one or both parents.
Feel free to give us a call to discuss your circumstances or any queries that you may have.