Parenting Arrangements: A Child’s Best Interest

After separation, it can be difficult to agree on arrangements for children. In Australia, parents do not have “rights” with respect to children and the time the children should spend with them; they have a responsibility to ensure that their child’s best interests are met, including their safety. This means that parenting arrangements for children post-separation must be in a child’s best interests.

WHAT ARE PARENTING ARRANGEMENTS?

Parenting arrangements outline how separated parents (or other significant people in a child’s life) will care for a child and how decisions for the child will be made, including:

1. Where a child will live;
2. How much time a child will spend with each parent;
3. How major long-term decisions (e.g. schooling, health and religion) will be made; and
4. Communication with each parent when the child is not in their care.

Parenting arrangements can be documented in different ways as outlined in the following article.

WHAT DOES “BEST INTERESTS OF THE CHILD” ACTUALLY MEAN?

The overarching principles of the Family Law Act 1975 (Cth) is to ensure that the best interests of the child are met. As each family and child are different, what is in a child’s best interest will vary depending on the family and the child’s circumstances.

Section 60CC(2) outlines key considerations to consider when deciding what is in a child’s best interests, which are:

1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child;
2. Any views or wishes expressed by the child;
3. The developmental, psychological, emotional, and cultural needs of the child;
4. The capacity of each person who has care of the child to provide for the child’s specific needs;
5. The benefit of the child having a relationship with each parent and significant others; and
6. Anything else that is relevant to the particular circumstances of the child.

In looking at these considerations, any history of family violence, abuse, or neglect, as well as any family violence order in place must also be considered.

It is important to note that more weight will be placed on the need to protect the child from physical, emotional or psychological harm or from being subjected to, or exposed to abuse, neglect or family violence.

ADDITIONAL CONSIDERATIONS FOR ABORIGINAL & TORRES STRAIT ISLANDER CULTURE

If a child is of Aboriginal or Torres Strait Islander culture, the following additional matters under Section 60CC(3) must be considered:

1. The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the support, opportunity, and encouragement necessary to:
   A) Connect with, and maintain their connection with members of their family, community, culture, country, and language; and
   B) Explore their culture; and
   C) Develop a positive appreciation of their culture.

WHAT IF YOU CAN’T AGREE ON WHAT IS IN YOUR CHILD’S BEST INTEREST?

If parents are not able to agree on what is in a child’s best interests the first step is to attempt a mediation or Family Dispute Resolution Conference. This process is specifically designed to assist parents to collaboratively and safely discuss what arrangements are in their child’s best interest.

Following a mediation, if parents cannot reach an agreement, “pre-action procedures” must be followed, and an application can be made to the Federal Circuit and Family Court of Australia for the Court to decide parenting arrangements.

TIPS FOR PARENTS

Separation can be a difficult and emotionally charged time for both parents and children. It is important to acknowledge and understand that children will manage the transition differently and require different supports along the way.

In creating a child-focused parenting arrangement, we recommend that you:

• Focus on your children’s individual needs, for example, does your child need more time to adjust to changes in their routine or increased time with a parent?
• Ensure that your children are not exposed to adult discussions or conflict about parenting arrangements
• Keep day to day routines consistent, especially around schooling and extra-curricular activities
• Maintain open and regular communication with the other parent (if it is safe to do so)
• Where possible, remain flexible as arrangements may need to change as children get older
• Put arrangements in writing to avoid misunderstandings between parents
• In circumstances of high-conflict, consider whether a Court Order would be appropriate to avoid ongoing changes to your child’s routine and/or conflict with the other parent.

If you are unsure about what arrangements are in your child’s best interests or how to formalise a parenting arrangement, it’s important that you speak to a family lawyer and obtain legal advice.

Our experienced Family Law Team can help you navigate parenting arrangements post-separation to prioritise your child’s safety and wellbeing.

Contact us today to discuss how we can support you in your parenting arrangements.

The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.