Risk of Harm
The paramount primary consideration for the Court is to determine if there is any risk of harm to the child. Harm can be physical or psychological.
If the Court determines that there is a risk of harm it will issue orders which protects the child from that harm. This could include supervision of a parent; counselling for a parent in regard to aspects of their behavious; orders to restrain the consumption of drugs and alcahol while with the child; and a variety of other orders to remove the risk.
The Court proceeds with caution of it is aware of a risk of harm. A party may advise the Court of Risk of Harm by a formal Notice to the Court. However, if the Court becomes aware of a risk during the proceedings it will, of its own accord, issue orders to achieve safety for the child.
It is often the case that the court isssues the tpes of above orders on an "interim" basis until a final hearing can determine the truth of allegations of harm or whether the harm requires orders.
It is a common frustration of a parent who is subject to orders which restrict their free time with their child on the basis of an allegation of harm. This is particularly the case as there are often long delays in the Court system which means that that parent is subject to onerous restrictions until they can finally "have their day in court" at a final hearing.
We have acted in cases of substantial risk and we have acted in matters where a parent has been falsely accused as well as cases where the allegations have been established. You will need an experienced lawyer if there is any risk of harm to a child in proceedings as if not properly conducted such a matter may result in long term restrictions on a childs time with a parent.
Relationship with both parents
Once the Court has determined the issue of risk of harm the paramount consideration of the Court will be to issue orders which establish and develop a meaningful and substantial relationship with each parent.
The Courts powers are grounded in the international human right of a child to have a relationship with both parents.
Its is important in Family Law parenting proceedings to remain child focussed. The Court will remain child focussed and we will work with you to ensure that you remain child focussed and a child focussed case is presented to the Court.
Putting it all together
After the court has determined the primary considerations of risk of harm and the means by which to develop and maintain a meaningful and substantial relationship with the child the court has to consider the following:
any views expressed by the child
factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
S60CC of the Family Law Act identifies what the Court will determine in deciding "what is in the best interests of the Child". In doing so it will make orders which are referred to as:
Parental Reponsibility (That is, who will have the responsibilty and power to make significant life decisions for the Child such as major medical treatment; what school the child will enrol in; and even what religion and practices are for the Child
"Live With" Orders (that is, who the child will live with on a day to day basis
"Time With" Orders (that is, who the child will spend time with when they are not living with the other parent)