Children Fact Sheet

When some relationships break down, what to do with the children is sorted out in a friendly way between the parents. In other cases, there are long and bitter disputes about the children.

Usually you have to attend mediation before you can commence court proceedings. The Courts can make decisions about the living arrangements for the children. For example, the children may primarily live with one parent and spend time with the other parent. On the other hand they may live with each parent for equal time.

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.

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.

Practical matters that the court may take into account include: -

▪ the benefit to the child of having a meaningful relationship with both parents
▪ the need to protect the child from physical or psychological harm and from abuse, neglect or family violence;
▪ the child’s wishes;
▪ the kind of relationship the child has with each parent;
▪ the capacity of each parent to provide properly for the child;
▪ the ability of each parent to facilitate and encourange a close relationship between the child and the other parent;
▪ the likely effect of any changes in the child’s circumstances.
▪ contact needs to be appropriate to the child’s age. The experts tell us:-

♦ Between 0 - 3 years: separation from the primary caregiver is a major issue. The child builds attachment with the primary caregiver and can experience separation anxiety or stranger anxiety when separated. Frequent short contact is usually appropriate (especially where there has been little or no earlier contact).

♦ 3 - 5 years: the anxiety of separation usually decreases. If the child does not see one parent at this age the child often thinks it is because s/he is “bad”.

♦ 5 - 8 years: the child can usually cope with longer periods of contact and can usually maintain affectionate bonds with the contact parent despite long periods of separation from them.

♦ 9 - 12 years: the child can usually cope with contact and separation between contact, but other challenges can arise at this age eg. anger towards the parent they think is responsible for the relationship breakdown. They can easily get drawn into fighting between parents.

♦ Adolescence: the child usually wants to know the parents are “there” but contact needs to allow for increasing time spent with friends and the need to develop autonomy from parents.

Of course, this is only a guide as all children are different.

Other important things to understand about the laws regarding children include: -

1. The law encourages families to solve their disputes with counselling, conciliation, mediation and arbitration, in preference to going to Court.

2. In making orders regarding children one of the principles to be applied by the courts is the need to ensure safety from family violence. Where there is a discrepancy between a contact order and a family violence order the contact order prevails. Strict conditions have to be met by the court before making a contact order which is inconsistent with a family violence order.







Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.