When the court has to make a decision about the children's living arrangements following the parents' separation, the key factor will be what is in the best interests of the child. Is it best for the child to live in shared-care arrangement or should it live predominantly with one parent and spend time with the other?
The Family Law Act 1975 was amended in 1995 to include the "best interests of the child" as the governing principle for all decisions regarding the children's care and living arrangements. The principles underlying this amendment are derived from the United Nations Convention on the Rights of the Child (UNCROC), which Australia is a signatory to.
A parenting matter will involve such issues as with whom a child is to live and the time a child is to spend with the other parent or any other person who may be significant in the child's life; the allocation of parental responsibility for a child and a number of other more specific matters, such as, for example, schooling, health, travel or relocation.
In a parenting matter, in deciding what's in the best interests of the child, the Court will take into account primary and additional considerations. There are two primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The safety of the child will outweigh the benefit of having a relationship with both parents.
Additional considerations include the child's views and level of understanding, their relationship with each parent and other people, including grandparents, and the willingness and ability of each parent to encourage a close and continuing relationship between the child and the other parent. The child's personal characteristics such as maturity level, gender, background, and culture may also be relevant considerations on deciding what is in their best interest.
If you have any questions regarding legal aspects of parenting following separation, contact a family lawyer.