The Family Law Act requires both parents to have parental responsibility for the care and welfare of their children. Children may live with either their mother or their father after separation and divorce. There are a variety of orders that you may apply for and that the court may grant, namely:
- Residency orders – These are orders that specify who the children are to live with at different times.
- Contact orders – These are orders that specify when the parent (with whom the children do not live with) is to have contact with the children.
- Specific issue orders – These are orders that relate to other matters concerning the welfare of the children (for example, medical treatment, schooling, etc).
Where there is conflict and disagreement between parents, either party may apply to the Family Court of Australia or the Federal Circuit Court of Australia to make parenting orders dealing with one or all of the issues above.
In the making of any parenting orders, the Court must regard the best interests of the child as the paramount consideration. When the Court considers the best interests of the child/children, the court takes into account primary considerations and additional considerations.
The primary considerations that a court takes into account include:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm.
Additional considerations that the court will turn its mind to include:
- The views expressed by the child taking into account the child’s maturity and understanding.
- The nature of the relationship of the child with the parents; and other persons (including grandparents).
- The willingness of the parents to encourage a relationship between children and the other parent.
- The effects of the proposed changes on the child’s circumstances including separation from parents; or any other child or person they have been living with.
- The practicality and expense of communication and affect on relationships it may have.
- The capacity of the parents and other persons to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the children and their parents.
- If the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share it.
- The attitude of the parents to parenting
- Family violence
- Family violence orders
- Orders that are likely to resolve issues rather than create further recourse to litigation
- Other factors the court deems relevant
If you or your partner wish to change the orders, then you can do so by agreement. If you can’t agree, and you want to change the orders, then you must satisfy the Court that a change in circumstances has occurred (since the parenting orders were made) which warrants the Court changing the orders.