Family Law Disputes Involving Children Pt III

By Carlos Turini – Accredited Family Law SpecialistCarlos Turini - Accredited Family Law Specialist

In a family law dispute about children, the court must consider a list of matters prescribed in Part VII of the Family Law Act  (“the Act) in order to make a decision. Section 60CC of the Act lists some “primary” and “additional” considerations.

Primary Considerations

There are two primary considerations [1] under section 60CC.

1. Meaningful relationship with both parents

The first primary consideration listed is that the child have a meaningful relationship with both parties. In disputes about children , the court normally comes to the view that it is appropriate that the child have a meaningful relationship with both parties. As a result, courts normally order that children spend regular, frequent time with the parent with whom they do not reside.

The requirement that a child have a meaningful relationship with both parents means that courts frequently prohibit a parent from relocating with the child far away from the other parent. The Court may conclude that the proposed move will have a detrimental effect to the relationship of the child and that other parent. The need for the child to develop or to continue to have a significant relationship with that other parent would be the overriding consideration for the Court in such cases.

2. Child must be protected from harm

The second primary consideration under section 66C is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

Out of these two primary considerations, in an appropriate case, the need to protect the child from abuse or violence will outweigh the need to ensure that the child have a significant relationship with both parents.[2]

As an example, in a case where a parent is or has been subjected to domestic violence, the court may conclude that the need to protect the child is more important that that the child have a significant relationship with the perpetrator of the violence

Additional Considerations

Section 60CC of the Act also lists several “additional” matters which a court must consider in each case when deciding on a dispute about a child. These additional considerations include:

  • The child’s views (and factors which are relevant to the weight to be accorded these wishes, for example maturity and level of understanding);
  • The child’s relationship with each parent or other people;
  • The effect of change on the child, including separation from parents or other people;
  • Practical matters regarding possible difficulties of the child having contact with a parent;
  • Child’s personal characteristics (maturity, sex, background, culture etc.);
  • A specific provision relating Aboriginal children and Torres Strait Island child;
  • The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents; and
  • Any family violence involving the child or a member of the child’s family.

The above is not an exhaustive list of all the additional considerations for the court pursuant to section 60CC of the Act. Sometimes, one of the additional considerations will become the most significant matter which may decide a case. As an example:

  • depending on the child’s age and maturity, his/her expressed wishes
  • if one child is estranged from one of the parents and they have not had any time together at all or for many years;
  • if there is or has been violence to which the child was exposed;
  • If one parent lives overseas and there are practical considerations about how the child may spend time with that parent.

For more information, contact Carlos Turini

p: (02) 6206 1300 | e: cturini@elringtons.com.au


Family Law: Relocation

By Carlos TuriniAccredited Family Law SpecialistCarlos Turini

When a parent moves with a child away from the other parent to another town or state or even to another country, he/she must obtain permission (leave) from the Family Court. In family law terminology, such a move is known as “relocation”.

In the event that leave is not obtained, the Court will normally require the parent and child that moved away to return until such time as the matter may be properly considered in a final hearing. If the child is not relocating a long distance away and the relocation will not affect the frequency and length of visits between the child and the parent staying behind the court may not require that leave be granted.

At the final hearing, the Court must consider a number of matters before it decides if it will grant leave to relocate. A list of other matters is found in different sections of the Family Law Act. Others are identified in reported decisions by the Full Court of the Family Court and also by the High Court. The best interest of a child is the paramount consideration in every case. However, that is not the sole consideration.

What if you need to relocate?

If your children mainly live with you and you need to relocate, you should first try to talk to the other party. You may be able to reach agreement with the other party on how you will ensure the children can still have a meaningful relationship with both parents. If you reach agreement with the other party, it is best to enter into a written parenting plan (between parents only) or apply for consent orders before you move. Unlike a parenting order parenting plans are not legally enforceable.  elringtons can help you with advice on both parenting plans and parenting orders.

What if you can’t agree about relocation?

If you cannot agree,  you can apply to a court for a relocation order to allow you to move. The Court may not grant permission. The best interests of the children will be the first consideration.

If the other party wants to take the children away and you do not agree, you can apply for an order to stop the relocation of the children.

elringtons can give you advice on how to apply to a court to relocate or to prevent relocation.

Amendments introduced to the Family Law Act in July 2006, created new important considerations for the court which are particularly relevant in relocation matters. To mention just three of these matters:

  1. One “primary” consideration is: “the benefit to the child of having a meaningful relationship with both of the child’s parents”
  2. A new “legal presumption” in every case that the parents of a child will have shared parental responsibility for the child;
  3. Another new legal presumption that each parent will spend equal time with the child.

A recent decision of the Full Court, Taylor and Barker [2007], gives some guidelines about the current state of the law regarding relocation matters. In that case, the mother was granted leave to relocate with her eleven year old son away from the child’s father. The Full Court quoted with approval the judgement of Federal Magistrate Brewster as follows:

“(a) The best interests of the child are the paramount consideration but are not the sole consideration. In particular, rights of freedom of movement are not to be ignored.

(b) An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed, neither party bears an onus; that is to say neither parent has the onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the interests of a child.

(c) The reasons for a parent wishing to relocate with a child is only one of the matters to be considered and it should not be dealt with as a separate issue.

(d) I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.

(e) I am to indicate which matters are of greater weight and explain how matters balance out.”

Brewster FM considered each of the different matters listed in the legislation. He concluded that: ”the child has a meaningful relationship with his father and: “… in my opinion, he will continue to have a meaningful relationship with his father even if face to face contact is confined to school holiday periods.”

The decision of Taylor and Barker [2007] gives us a glimpse of how a Court may approach a relocation case.

These matters are complex and the Court will deal with each case on its facts.

For more information or to make an appointment in either our Canberra or Queanbeyan office please contact:

p: (02) 6206 1300 | e: cturini@elringtons.com.au