Who will get the children?

In Australia, both parents have equal shared parental responsibility however, this does not mean equal time. Parental responsibility (whether shared equally or not) relates to major long-term issues affecting a child such as education, religious and cultural upbringing, health, name, and living arrangements.

Courts only make Orders that are considered to be in the best interests of children and the best in interest of the child is the paramount consideration. Perhaps the most important legal principle to understand when it comes to your children is that, as a parent, you do not have a legal right to spend time with or see your child. Rather, in line with the principles listed above, it is children who have the right to have a meaningful relationship with their parents.


If you find yourself in the Family Courts, you can expect that the following principles will be applied by your Judge to determine the arrangements for your children. The paramount principle that the Court applies when considering arrangements for children is whether those arrangements are in the ‘best interests’ of a child or children.


  1. Children have the benefit of both of their parents having meaningful involvement in their lives.
  2. The need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence.
  3. Parents meet their responsibilities concerning the care, welfare and development of their children.
  4. Children have the right to know and be cared for by both of their parents and spend regular time and communicate with their parents and other people significant to their care.
  5. Any views expressed by a child, taking into account the child’s maturity or level of understanding.
  6. The nature of the relationship of the child with each of the child’s parents and significant others, including grandparents and extended family.
  7. The extent to which the child’s parents have been involved with the child
  8. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from their parents or another significant person in the child’s life.
  9. The practical difficulty and expense associated with a child spending time or communicating with a parent.
  10. The capacity of the parents to provide for the child including providing for the child’s emotional and intellectual needs.
  11. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
  12. The attitude to parenthood demonstrated by each of the child’s parents.
  13. Any family violence involving the child or a member of the child’s family.
  14. Whether it would be preferable to make an Order that would reduce the chance of any further litigation between the parents.
  15. Anything else that the Court thinks is relevant for that child


the difficulties with the pure application of the Family Law Act is that the intricacies of your family and your children, including your values, routines and goals, will not necessarily feature in the legal considerations. While a Judge will take all of the principles into consideration, this will not always take into account, in the way you might prefer, your children’s ages, needs, maturity and temperament. This is why you and your ex partner, as the parents to your children, are the people best placed to make such significant decisions for them.

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