• McKenzie Friend Australia

Who Is The “Better” Parent In The Eyes Of The Family Court?

I just had a case come across my path where the ex-husband, after divorce, continued at his mid management level job, and the ex-wife remarried a wealthy man. The ex-wife is now lavishing gifts, overseas trips and wonderous promises upon the parties minor children. The ex-husband, is not as financially well off as the former wife and he was concerned he would not been viewed equally for being 'less financial' if mediation failed and he had to go to court.

So, who is the better parent when facing a parenting application in the Australian Family Court?

The short answer - Courts do NOT recognise the wealthier parent as necessarily the “better” parent as some people might assume.

When it comes to time sharing or primary care of children, the best interests of the child controls the Judge’s decision. Issues such as who spends quality time with the kids, who takes them to after school lessons, who helps with homework, who takes them to the doctor, who is more involved in school activities, who provides stability instead of risk…those are the things the Judge considers in determining which parent better serves the needs of the children as a primary carer. Not the amount of clothes a parent can buy or the price or quantity of gifts a parent can buy.

The Family Law Act 1974 can be daunting, so I let's look at what really matters in ge.

The Primary Considerations looked at to decide the best interests of children are:

  1. The benefit to the child of having a meaningful relationship with both parents (Section 60CC(2)(a)); and

  2. The need to protect the child from physical or phycological harm, or from being subjected or exposed to abuse, neglect or family violence (Section60CC(2)(b)).

If these 2 considerations conflict, then the need to protect the child is more a important consideration (Section 60CC(2A)).

Additional considerations (Section 60CC(3)) looked at to decide the best interests of children are:

  • Any views expressed by the child and any 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 (Section 60CC(3)(a));

  • The nature of the relationship of the child with: - Each of the child’s parents (Section 60CC(3)(b)(i)); and Other persons (including any grandparents or other relative of the child (Section 60CC(3)(b)(ii));

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

  • To participate in making decisions about long term issues in relation to the child (Section 60CC(3)(c)(i)); and

  • To spend time with the child (Section 60CC(3)(c)(ii);

  • To communicate with the child (Section 60CC(3)(c)(iii);

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

  • Either parent (Section 60CC(3)(d)(i)); or

  • Any other child, or other person (including grandparent or other relative of the child) with whom the child has been living (Section 60CC(3)(d)(ii),

  • The practical difficulty and expense of a child spending time 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 (Section 60CC(3)(e))

The compacity to provide for all the needs (including emotional and intellectual) of the child by:

  • Each of the child’s parents (Section 60CC(3)(f)(i); and

  • Any other person (including any grandparent or other relative of the child) Section 60CC(3)(f)(ii)).

The maturity, sex, lifestyle and background (including liftestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the court thinks are relevant (Section 60CC(3)(g)).

Is the child is an Aboriginal Child or Torres Strait Islander Child:

  • The child’s right to enjoy their culture (Section 60CC(3)(h)(i)); and

  • The likely impact any proposed parenting order will have on that right (Section 60CC(3)(h)(ii);

The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (Section 60CC(3)(i)).

Any family violence involving the child or a member of the child’s family (Section 60CC(3)(j)).

If a family violence order applies, or has applied, to the child or a member of the child’s family and any relevant inferences that can be drawn from the order, taking into account the following:

  • The nature of the order (Section 60CC(3)(k)(i);

  • The circumstances in which the order was made (Section 60CC(k)(ii));

  • Any evidence admitted in proceedings for the order (Section 60CC(3)(k)(iii));

  • Any findings made by the court in, or in proceedings for, the order (Section 60CC(3)(k)(iv);

  • Any other relevant matter (Section 60CC(3)(k)(v)).

Whether it would be preferable to make the order that would be least likely to lead to the institution or further proceedings in relation to the child (Section 60CC(3)(l)).

The Act does specifically say it must consider “any other fact or circumstance that the court thinks is relevant” and accordingly, they can also look at:

· The history of the relationship;

· The history of the care of the children;

· The events that have happened since speration; and

· The circumstances that have existed since your seperation.

I am not a lawyer, I am a McKenzie Friend and I can't stress enough to parents to be realistic when discussing parenting arrangements or else your lives will be in turmoil and uncertainty for a long period of time and that time and money is better spent with and on your children.

Regarding living arrangements, it is not the bigger house that “wins”, as long as the children have a clean, safe and decent place to live in the eyes of the Judge.

While parents are rarely equal in their parenting skills, time allotted to children, or money available to them, a Judge has to consider all factors in determining where the best interests of the children are found. It is to that parent that the Judge would grant primary care and majority time.

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