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How does the court make decisions?

The Court applies part VII of the Family Law Act 1975 (Cth), which relates to children.

Section 60B of the Act sets out the main aim and principles of part VII.

The main aim of the part is to ensure 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
  • protecting children from physical or psychological harm (from being subjected to, or exposed to abuse, neglect or family violence)
  • ensuring that children receive adequate and proper parenting to help them achieve their full potential
  • ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children

The principles underlying that main aim are:

  • 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
  • children have a right to spend time 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)
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children
  • parents should agree about the future parenting of their children
  • children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)

Under s 60CA of the Family Law Act 1975 (Cth) the Court’s paramount consideration in making any parenting orders must be the best interests of the child.

How does the Court work out what's in the best interests of the child?

When determining what's in the best interests of the child the Court must consider a set of primary considerations and a set of additional considerations [s 60CC].

Primary considerations

  • the benefits of the child having a meaningful relationship with both 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)

In applying these two primary considerations the Court must give greater wight to protecting th child from pyhsical and psychological harm [Family Law Act 1975 s 60CC (2A)].

Additional considerations

  • any views expressed by the child
  • the nature of the child’s relationship with:
    • each parent
    • other persons, including grandparents and other relatives
  • the extent to which each of the parents has taken or failed to take the opportunity to communicate and spend time with the child and particiipate in making decisions about major long-term issues relating to the child
  • the extent to which each of the parents has fulfilled or failed to fulfill the parent's obligations to maintain the child
  • likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
    • either of their parents
    • any other child
    • other person, including grandparents and other relatives, with whom the child has been living
  • the practical difficulty and expense of a child communicating and spending time with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
  • the ability of each of the child's parents and any other person, including grandparents and other relatives, to provide for the needs of the child, including emotional and intellectual needs
  • the maturity, sex, lifestyle and background (including culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child the Court thinks are relevant
  • the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
  • any family violence order involving the child or the child’s family and any relevant inferences that can be drawn from it
  • whether it would be preferable to make the order least likely to lead to further proceedings in relation to the child
  • any other fact or circumstance the Court thinks is relevant
How does the court make decisions?  :  Last Revised: Thu Sep 7th 2017
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