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Parenting Terms



In the past you would often hear terms such as ‘custody’ and ‘access’ or ‘guardianship’ of children when people were referring to parenting issues in a marriage or relationship. In fact, many people still refer to these concepts as part of their vocabulary.  


Legally, however, these terms have for some time now been largely abolished by amendments to the Family Law Act and replaced with different concepts: 

  • ‘Lives with’ Orders – i.e. where the child lives and with whom; 

  • ‘Spends time with’ and ‘communicates with’ Orders – i.e. arrangements for the parent with whom the child does not normally live, to spend time and communicate with them; 

  • ‘Special Issues: - i.e. any particular matter which requires specific mention (E.g. the appropriate school for the child’s education, specialist medical treatment or any other issues relating to a child’s upbringing and welfare).   

In the absence of a Court Order to the contrary, equal shared parental responsibility is retained by both parents, meaning that decisions on major long-term issues should not be made without consulting the other parent first. Major long-term issues include education, religious and cultural upbringing, health and even choice of name.  

When a Family Law Court is asked to make Orders about parenting arrangements, it must consider the best interests of the child as the paramount consideration. 


What is in a child’s “Best Interests”?  

The main considerations for a Court are:  

  • The benefit to the child of having a meaningful relationship with both parents; and 

  • The need to protect the child from harm (physical or psychological) by being exposed or subjected to abuse, neglect or family violence. 

 

The protection of children from harm is the most important consideration for a Family Law Court. 

 

There is nothing in the Act that says that children of any age can “make up their own mind” about what is in their best interests. The fact that a teenage child is expressing a view of their own that they wish to live with mum and not dad or vice versa, does not on its own create any legal obligation on the Court. 

 

If a child is mature enough to have a view about the proposed arrangements, the Court can take those views on board.  This does not mean that your child will be called to the Court as a witness in proceedings or even be present at Court during the proceedings.  The Court will often obtain evidence of the child’s views through a Family Report.  This is prepared after the parties meet with a social worker or psychologist who provides a report following the interviews to the Court. They can speak with the children as well as the parents and will give a professional opinion as to what living arrangements they think are in the best interests of the children. 

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