How do Judges Make Parenting Orders?

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What is the Legislative Pathway?

Judges refer to what practitioners call the ‘Legislative Pathway’ to assist them in making parenting orders. The legislative pathway can be identified within the Family Law Act 1975 (the Act). This article aims to shed some light on this process.

Normally, with some specific exceptions, parties may not commence court proceedings unless they have attended counselling/mediation about the dispute and an accredited family consultant has issued a Certificate (a section 60(I) Certificate) to that effect.]

Step 1 – Paramount Consideration

The ‘paramount’ consideration when making a parenting order under s60CA of the Act is the child’s best interests. Parents are encouraged to use this principle when making parenting plans.

Step 2 – Objects and Principles

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  • The objectives and principles under section 60B of the Act requires that except when contrary to the child’s best interests, both parents must maintain a meaningful relationship in the children’s lives.
  • Factors that are deemed “contrary to the child’s best interests” includes whether either parent has engaged in physical or psychological harm, or exposed their children to abuse, neglect or family violence.
  • Children have a right to spend time with both parents and enjoy their culture, s60B (2) of the Act.

Step 3 – Presumption of Equal Share Parental Responsibility ESPR

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  • There is a presumption in favour of both parents having ESPR.
  • This presumption is rebutted if a parent has engaged in child abuse or family violence.
  • If there is no abuse or family violence, the court must consider an order of equal time, if it’s in the best interests of the child and reasonably practicable.[1]
  • If it isn’t in the best interests of the child and reasonably practicable to consider an order of equal time, the court must consider substantial and significant time,[2] if it’s in the best interests of the child and reasonably practicable.
  • If it isn’t in the best interests of the child and reasonably practicable to consider an order of substantial and significant time, the court must make an order that it considers appropriate in the circumstances.

Step 4 – Determining Best Interests of the Child

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  • Primary Considerations under s60CC (2) of the Act;
  • Meaningful relationship with both parents s60CC (2)(a) of the Act.
  • Need to protect the child from physical, psychological harm or exposure to abuse, neglect or family violence s60CC(b)(2)(b) of the Act;
  • NB: the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence under s60CC2(b) of the Act takes precedence over the benefit to the child of having a meaningful relationship with both of the child’s parents under s60CC(2)(a) of the Act.

Step 5 – Additional Considerations

  • The Child’s views – generally applies at the age of 13 and above;
  • Nature of relationship of the child with each parent and other persons (including any grandparent or other relative of child);
  • Extent that parent/s have taken, or failed to take, the opportunity to patriciate in long term decision making;
  • extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain a meaningful relationship with the child;
  • likely effect of any changes in the child’s circumstances;
  • 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 the parents and any other person to provide for the needs of the child, including emotional and intellectual needs;

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  • the maturity, gender, lifestyle and background of the child and of either the child’s parents and any other characteristics of the child that the court deems relevant;
  • The culture and traditions of the child, including if the child is Aboriginal or Torres Strait Islander;
  • 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.
  • whether it would be preferable to make an order that would be least likely to lead to further proceedings in relation to the child; and
  • any other fact or circumstances that the court deems relevant.
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It’s important that you engage a Lawyer that walks the Judge through the legislative pathway in order to support your application for Equal Shared Parental Responsibility and/or substantial and significant time. It is important that your application factors in these key considerations to maximize your chances of obtaining a favourable outcome

Enquiries:If you find yourself in a position where you need advice in relation to Parenting matters, please do not hesitate to contact Carlos Turini of our Canberra Office

e: | p: 02 6206 1300

[1] Reasonably Practicable includes consideration of how far apart parents live, parent’s current and future capacity to implement the arrangement and communicate with each other, the impact of that arrangement on the child and any other relevant matter: s65DAA of the FLA1975.

[2] Substantial and Significant Time includes weekends, holidays and weekdays

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