The law in Australia is that the best interests of the child are the paramount consideration. Children are entitled to enjoy a meaningful relationship with both parents. The law also describes that children need to be protected from being subjected to, or exposed to physical or psychological harm. Ideally, your parenting arrangement will incorporate all these concepts, but there are times when it is not in the best interests of the child to spend time with a parent.
The law is described in the Family Law Act 1975 and it is gender-neutral, making no assumptions about who performs what parenting roles.
A presumption of ‘Equal Shared Parental Responsibility’ exists, when parents separate, with children under 18 years of age. However, equal shared parental responsibility is not the same as equal time.
Equal shared parental responsibility means that both parents share the responsibility for making decisions about major long-term issues, such as schooling, major health decisions, and religious observance. A Court can decide that it is in the best interests of the child to remove parental responsibility from one or both parents.
A child’s age is not one of the determining factors in deciding where the child will live. Notwithstanding that, the older a child gets, the more weight their voice carries. The Court does take into account:
- the child’s maturity
- their level of understanding of the situation
- whether their opinions are well informed
- whether there is evidence the child has been unduly influenced
The role of an Independent Children’s Lawyer
In some situations, the Court will appoint an Independent Children’s Lawyer to represent the children. The ICL will gather information from sources including teachers, doctors, psychologists, counsellors, police and child welfare authorities before deciding whether to interview the child or not.
This appointment will often be made in cases where:
- there are allegations of physical, sexual or psychological child abuse
- there is ongoing conflict between the parents
- the child is alienated from one or both parents
- there are cultural or religious differences affecting the child
- there is a proposal to separate siblings into different households or take a child overseas
The article is written by Gold Coast Family Lawyers, who practice in the area of Family Law and is intended to offer simple explanations to frequently asked questions about whether children’s voices are heard in family law proceedings. It is not legal advice and should not be relied upon as it does not answer questions specific to your situation.