It is always preferable for parents to come to a mutual agreement when considering parenting arrangements for a child.
If this is not possible, then going to Court to get parenting orders put in place may be necessary. If parents cannot reach agreement on parenting arrangements there is a requirement for parents to attend Family Dispute Resolution prior to commencing any Court proceedings.
When making parenting orders, Courts no longer use words like ‘custody’ or ‘access’. They consider who should have parental responsibility for the child and how much time the child should spend with each parent.
There is no presumption that a child should live with one parent in particular. The paramount consideration when making parenting orders is “what is in the best interests of the child”. Generally, the Court presumes that it will be in the child’s best interests for both parents to have equal shared parental responsibility and to spend substantial and meaningful time with both parents. An exception to this is if there has been a history of abuse or violence.
The Courts take many things into account when considering what is in the best interests of the child, including (but not limited to):
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm.
- The child’s relationship with both parents and other persons, including grandparents.
- The willingness of both parents to involve each other in the child’s upbringing.
- The extent to which either parent has fulfilled or failed in their obligations to maintain the child.
- How will any proposed changes to living arrangements affect the child.
- Are there any practical difficulties (such as distance) that parents will face in seeing the child.
- The capacity of both parents to provide for all the child’s needs, including intellectual and emotional needs.
- The responsibilities both parents have shown to parenthood.
- The child’s own views and the weight it should give those views depending on the child’s age and maturity.
- Any history of violence, abuse or neglect.