How does a court decide who gets the children? – Best interests and other considerations

If you’ve found yourself in the midst of a separation or divorce and are having difficulties with your ex-spouse agreeing on parenting issues, this article will give you a brief summary of how a court decides how a child spends time with each of their parents. If, however you don’t have any disagreement, then there is no need for a court to be involved and you can create a parenting plan that suits both you and your ex.

As a starting point, there is a statutory presumption of joint parental responsibility. This presumption however, is rebutted when a court determines that this presumption is in conflict with the child’s best interests or family violence or child abuse is shown to exist.

If the presumption is not rebutted, then the court must consider whether a shared care arrangement is both in the best interests of the child and reasonably practicable.

The Family Law Act 1975 sets out the paramount consideration for the court as being the best interests of a child or children. But what do best interests mean?

Best interests – Primary considerations:
The court will determine what is in the child’s best interests by giving weight to two primary considerations:

  • 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.

Therefore, if there is family violence present, the court is primarily concerned with the need to protect the child, and is therefore not likely to consider that a shared-care arrangement is in the child’s best interests.

CASE EXAMPLE:
In a recent decision of the Family Court, it was decided that because an act of family violence had occurred in the father’s home, the shared care arrangement must be withdrawn and replaced with an arrangement whereby the child live with the mother but spend time with the father.

The child had been in the father’s house when an argument had occurred between the father and his de facto partner. The father had asked his partner to leave the house and had tried to physically remove her by putting an arm around her and steering her to the front door. In his evidence, he stated that she then grabbed the door frame and they both fell and she chipped a tooth.

Despite the father denying that there was a severe physical assault, the court determined that this was an act of family violence within the meaning of the Act, and therefore it was no longer in the child’s best interests to return to the shared care arrangement.

This case illustrates the court determining what is in the child’s best interests. In this instance, the court placed its emphasis on the second primary consideration, that is, the need to protect the child from family violence. This was balanced with the need for the child to have a meaningful relationship with each of the child’s parents.

What are the other considerations taken into account by the court?
Best interests – Additional considerations:
Additional considerations are used by a court to determine what is in the child’s best interests once the primary considerations have been examined.

The additional considerations listed in the Act are an in-exhaustive list of factors. They include:-

  • views expressed by the child;
  • the nature of the relationship of the child to the parent or other persons (including grandparents);
  • the willingness of each of the parents to facilitate and encourage a continuing relationship with the other parent;
  • the capacity of each of the child’s parents to provide for the needs of the child; and
  • any other fact or circumstance that the court thinks is relevant.

CASE EXAMPLE:
Recently a matter in which the father lived in Singapore and the mother in Australia was heard in the Family Court. There, the court deliberated in detail over the child’s best interests with regard to seeing his father, who had previously not been consistent in his visitations to see the child.

There was evidence of a gap of nine months in which the father had not visited his son, as well as evidence of visitation times that had been missed. The parents were not able to communicate effectively, and each of them was found to lack a facilitative and cooperative attitude to one another.

The court was satisfied that the presumption of equal shared parental responsibility was in the child’s best interests as there was no evidence of family violence to rebut the presumption.

Despite the presumption of equal shared parental responsibility applying, the court drew on evidence from a Family Consultant (an independent third party observer) and the parties’ affidavits to decide that it was in the child’s best interests for the mother to have sole parental responsibility. The mother was to keep the father informed in relation to major long term decisions.

Factors that the court considered as important to this determination were:

  • the father’s desire to spend time with his son;
  • an opportunity turned down by the father to work in Australia and therefore be closer to his son, and the effect that this decision would deprive the child of a strong bond with his father;
  • in the nine months that he did not visit the child, the father travelled elsewhere overseas, thereby proving his capability of travelling, but choosing this over his parental responsibility to the child;
  • the Family Consultant’s recommendation for predictability and routine in the child’s life;
  • the fact that the child would be accommodated in hotels or apartments instead of a familiar environment when staying overnight with the father in the future;
  • If the father were to commit to seeing the child monthly, as proposed, this may not always be feasible due to work commitments interfering;
  • the difficulty of a child to understand presence, absence and changes to their routine;
  • if equal shared parental responsibility were to apply, this would provide fertile ground for conflict which, in the long-term, could be disturbing for the child.

We hope this had provided you with a brief overview and insight into the factors courts will consider when determining the child’s best interests in relation to parenting matters. This article in no way is a substitute for detailed legal advice and should not be used as such.

For a detailed application to your own circumstances, please call (07) 3009 8444 to make an appointment to see our Queensland Law Society Family Law Accredited specialist, Tuskeen Jacobs.

How does a court decide who gets the children? - Best interests and other considerations

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