Scarf Family Law

Parenting arrangements and disputes

How does the Court decide who the Children will primarily live with?

The Court has a duty to make parenting orders that are in the best interest of the children.
When considering what is in the best interests of the children, the court is to have regard to what are referred to as the” primary considerations” and “additional considerations”.
The primary considerations are:

  1. To facilitate a meaningful relationship between the children and both of their parents:; and
  2. To protect the children from harm:

These primary considerations often overlap and the court has to weigh up competing proposals e.g. there has been family violence, however, the children should have meaningful relationship with both parents. Ultimately, when faced with competing proposals from parents, decisions are made by the court with regard to what is in the best interests of the children.
The additional considerations include:

  1. The views expressed by the child taking into account the child’s maturity and understanding.
  2. The nature of the relationship of the child with the parents; and other persons.
  3. The willingness of the parents to encourage a relationship between children and the other parent.
  4. 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.
  5. The practicality and expense of communication and affect on relationships it may have.
  6. The capacity of the parents and other persons to provide for the child’s needs.
  7. The maturity, sex, lifestyle and background of the children and their parents.
  8. If the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share it.
  9. The attitude of the parents to parenting
  10. Family violence and family violence Orders
  11. Other factors the court deems relevant

What is Equal Shared Parental Responsibility?

When the Court makes a parenting Order it presumes that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Parental responsibility includes making all the major decisions affecting the children e.g. what school they should attend, what medical treatment they should receive etc.
In the absence of parenting orders, parties are deemed to have equal shared parental responsibility and therefore have a duty to consult with each other in relation to these issues and attempt to jointly reach a decision that is in the best interests of the children.
In some cases there are exceptions that override equal shared parental responsibility (e.g. in cases of child abuse and family violence).

What are age appropriate Orders?

There has been a great deal of research into attachment theory which relates to the bonds newborn babies form with a primary carer. Accordingly, orders for equal time are not always appropriate, such as in cases involving babies.
Age appropriate orders that gradually increase time recognise the factors that are ultimately in the bests interests of the child.
Age development theory suggests the following (depending on the individual development of the child , the circumstances of separation and the involvement of the parents):

  1. Babies have a primary carer (usually one parent) and should spend frequent short periods of time with the other parent;
  2. At about two years of age children can tolerate up to only one night away, two times a week (not in succession) from the primary carer;
  3. At school age(about five), this can increase to equal time, 3-4 nights on and 3-4 nights off with parents; and
  4. At about ten, the time apart from the parents can increase to week about arrangements.