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Children's Law Fact Sheet - NSW

What happens if you can't agree on arrangements for your children?

What about the children?

When some relationships break down, what to do with the children is sorted out in a friendly way between the parents. In other cases, the parents will either need assistance to reach an agreement or the Court will have to decide what the arrangements will be.

Assistance to reach agreement usually comes in the form of mediation. The parents are assisted by an independent person to negotiate their own agreement as to the arrangements for the children.

If mediation fails, the Court will make a decision about the living arrangements for the children. Usually you have to attend mediation before you can commence court proceedings. The Court may decide that the children will primarily live with one parent and spend time with the other parent or it may decide that they will live with each parent for equal time etc.

The Court can also make decisions about the parental responsibility each parent has for the children. eg. the Court could order that one parent is to be responsible for making decisions about the medical treatment of the child.

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If there is a dispute about the living arrangement for the children, what will the court take into account in reaching a decision?

The law says "a court must regard the best interests of the child as the paramount consideration".

Other important principles include (although always subject to what is in the child's best interests): -

  • children have the right to know and be cared for by both their parents;
  • children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development (eg. grandparents);
  • parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
  • parents should agree about the future parenting of their children.
  • children have a right to enjoy their culture

In determining what is in a child's best interests the Court must consider two "primary considerations" and a number of "additional considerations".

The two primary considerations are:

  1. The benefit to the child of having a meaningful relationship with both of the child's parents
  2. The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The courst must give greater weight to the second of these two primary considerations.

The additional considerations include:

  1. Any views expressed by the child
  2. The nature of the child's relationship with each parent
  3. The capacity of each parent to provide for the needs of the child
  4. The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents

Related ArticleCan I change my child's surname after separation?


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