Navigation

Family Law Article - Separation and children's matters

This article comes from the family law team at Hatzis Lawyers Brisbane

When a couple with children under eighteen decides to take that fateful step and end their relationship once and for all, one of the major issues they need to address is the care of their children.

Section 60B (1) of the Family Law Act states that the object of the legislation pertaining to children is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents meet their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60 (2) of the Family Law Act states that the principles underlying these objects are that, except when it is or would be contrary to a child's best interests:

  1. children have a right to know and be cared for by both of their parents, regardless of whether the parents are married, separated, have never married or have never lived together; and
  2. children have a right of contact, on a regular basis, with both of their parents and other people significant to their care, welfare and development; and
  3. parents share duties and responsibilities concerning the car, welfare and development of their children; and
  4. parents should agree about the future parenting of their children.

The Family Law Act encourages parents to enter into and agreement (parenting plan) with regards to matters concerning the child and in reaching agreement, to regard the best interests of the child as the paramount consideration.

A parenting plan may deal with one or more of the following:

The issues that are relevant are many and varied and can include such things as what particular days or times a parent who does not have residency of the chid is to enjoy contact, who is to pick up and/or collect the child and where that is to occur. It can also include such things as where the child is to go to school, access by a parent to school reports and medical reports and so forth.

In matters where there is a dispute between parents with regards to residency and/or contact, a court may be asked to make a intervene and determine the issue.

How a court determines what is in a child's best interests

Very briefly, according to the Family Law Act a court must consider:
  1. any wishes of the child and any factors such as the child's level of maturity or level of understanding;
  2. the nature of the relationship of the child with each of the child's parent's and other persons;
  3. 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, with whom he or she is living;
  4. the practical difficulty and expense of the child having contact with a parent a whether that difficulty or expense will substantially affect a child's right to maintain persona relations and direct contact with both of the parents on a regular basis;
  5. the capacity of each of the parents, or of any other person, to provide for the needs of the child including emotional and intellectual needs;
  6. the child maturity, sex and background (including the need to maintain a connection with lifestyle culture and traditions) and any other characteristic the court thinks are relevant.
  7. The need to protect the child from physical or psychological harm caused or that may be caused by being subjected to or exposed to abuse, ill treatment, violence and or other behaviour; or
  8. The attitude of the child, and to the responsibilities of the parenthood, demonstrated by each of the child's parents;
  9. Any family violence involving the child or a member of the child's family;
  10. Any family violence order that applies to the child or a member of the child's family;
  11. 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.

In a matter where the parents are unable to agree the court may appoint a child representative to represent the child and order that a Family Report be written up by an appropriately qualified expert such as a social worker, psychologist or psychiatrist. The report will typically address the factors mentioned above.

If you need any family law assistance in Brisbane, please email us and we can send out a family law pack to you.

Alternatively, you can call us on (07) 3345 4388 to give us an opportunity to serve you

Hatzis Lawyers are a dynamic firm of Brisbane lawyers and solicitors contributing their might to the smart state of Queensland.