Divorce & Child Custody: “How does the Court determine the best interest of the child”?

Ross KoffelPrincipal, Koffels Solicitors & Barristers

A divorce or breakdown of a relationship is a difficult time but what can add further stress to the situation is trying to decide what arrangements to make for your children. The concept that the mother has primary care of the children, and therefore the children should live with her no longer exists. 

The Family Law Act 1975 aims to ensure that the best interests of the child are met by:

 

  1. 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; and

 

  1. Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

 

  1. Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

 

  1. Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

 

In simple terms the court has the view that children have a right to have a meaningful relationship with both of their parents provided that the child is not at risk of being subjected to, or exposed to physical or psychological harm, be it abuse, neglect or family violence. The safety of the child is the courts paramount consideration.             

In the event that there is a risk to the child in the care of either parent, then the court will make the appropriate orders to ensure the protection of the child. In such circumstances, the court could order that the child live with one parent and spend supervised time with the other parent. Depending on the particular circumstances, supervision can be conducted by a family member, a contact centre or through paid supervisors that will attend while the child is spending time with a particular parent.

In the event that the child is not at risk, the Court will also consider the following when determining the best interests of the child. (Please note, this is not an exhaustive list): 

  1. Any views expressed by the child, having regard to the child’s maturity or level of understanding of the circumstances;

 

  1. The nature of the child’s relationship with each of the parents and any other person with whom the child has a close relationship, such as a grandparent, another relative or person the child may have lived with or formed a close bond;

 

  1. The extent to which each parent has participated or attempted to participate in:

 

3.1.             Making decisions regarding the long-term issues in relation to the child;

 

3.2.             Spending time with the child; and

 

3.3.             Communicating with the child.

 

  1. The extent to which each parent has contributed to maintaining the child;

 

  1. The impact on the child of changing their current circumstances, including separation from either parent, another child, a relative or other person with whom the child has been living;

 

  1. The practicality and expense associated with the child spending time with each parent;

 

  1. The capacity of each parent to provide for the child’s emotional and intellectual needs;

 

  1. If there has been any family violence towards the child or other members of the family;

 

  1. The need to preserve the child’s cultural identity; and any other fact or circumstance that the court thinks is relevant.

 

Child custody after a divorce or break-down of a relationship is always an emotionally charged issue. If you feel that you are unable to come to an amicable agreement with your ex-spouse/partner, seek professional help to assist the process.

Insure that the relationship is then set down in writing regardless of the circumstances under which an agreement has been made.  The agreed terms may then be relied upon should the agreement later come under pressure, or others dispute the terms of that agreement.

A good foundation is always the simplest, if things go wrong later down the track it becomes much harder, emotionally charged for all concerned and inevitably more costly.

Koffels have a Family Law practice covering issues of divorce, property settlement, defacto, and custody of children that can support you through this process.