How does a court determine the living arrangements for my children?
The paramount consideration of a Court in determining what parenting order it is to make, is the child’s best interests.
When considering what orders are in your children’s best interests, the primary considerations of the Court are:
- The children’s right to have a meaningful relationship with both of their parents;
- The right of the children to be protected from harm.
Where there is a conflict between these two fundamental rights of the child, the child’s right to be protected from harm is given greater weight by the Court.
There are additional considerations the Court is also required to consider in determining what orders are in the child’s best interests, such as the views of the child, the nature of the child’s relationship with both of the parents, the capacity of the parents to meet the needs of the child, any family violence orders and family violence involving the child or a member of the child’s family. For more information in relation to the best interests factors check out the following page: Parenting Disputes.
What if there is a risk of harm to a child in the other parent’s care?
When a parenting dispute is before the family law courts, until a Trial, a Judge is not allowed to make findings of fact about any of the issues in dispute between the parties.
This means the Judge can’t say to be true any of the facts asserted by one party, which are not agreed facts. For example, the Judge can’t say they believe what the mother is saying is true that the Father has been violent towards her. Similarly, the Judge can’t say they believe that what the Father is saying is true about the Mother abusing drugs when the child is in her care.
At a trial, the parties are subject to cross-examination. It is at this time that the Judge can listen to the evidence and decide who is telling the truth and who is not in order to make findings about the issues in dispute and determine what orders are in the children’s best interests.
Therefore, at an interim hearing stage and until a trial, the Judge will have regard only to the agreed facts, the issues not in dispute, the care arrangements of the children prior to and post separation and any independent evidence available (e.g. drug tests, reports from DOCS, letters from the school, letters from psychiatrists or other mental health practitioners for a party or a child) to assess what interim orders it is to make. This puts the Judge at an extreme disadvantage in trying to ascertain the interim orders that are in the children’s best interests.
This means, at least at an interim hearing stage, the Judge is likely to make orders which are conservative, where there are various factual disputes and an allegation of risk is made and where that risk would cause the court a real concern about the safety of a child in one parent’s care.
However, not every risk factor alleged by a parent will result in the court making orders that a child spend supervised time with a parent.
For a court to make an interim order for a child to spend supervised time with one parent, the Judge would need to review the affidavits and evidence before it and having regard to the agreed facts, the facts and issues not in dispute and the independent evidence, form the conclusion that the child is at an unacceptable or real risk of harm in that parent’s care.
The Court deals with all manner of risks when a parenting application is filed. Most risks can be managed by ensuring appropriate orders are put in place, to reduce the gravity of the risk and the prospect of it eventuating, such that the risk if any which remains is acceptable (i.e. the nature of the risk is low and/or the probability of the risk eventuating is low). For example, if an allegation is made that the other party is taking drugs, an order can be made by the Court that a party refrains from taking or being affected by drugs when the children are in that parent’s care. The Court can also order that a parent undergo drug testing, and if the test is positive, a Court is likely to make orders that the parent’s time be supervised at an interim stage.
What if there has been domestic violence by one parent to the other?
Allegations of domestic and family violence and narcissistic abuse by one parent against another parent are made in most applications for parenting orders before the family law courts.
It is common that a parent will argue that the time a child spends with the other parent should be supervised because of family violence (allegedly) perpetrated upon them by the other parent. It is common that such family violence particularises threatening and controlling behaviour by one parent to the other parent. It is common that a protection order (DVO) has been made in favour of one parent and against the other parent when a matter is litigated before the family law courts.
It is not the rationale of the Family Law Courts that a DVO has the effect of prohibiting time between a child and the parent that is the respondent to such an order. Where a parent has the benefit and protection of a DVO it might be seen as allowing the continuation of a parent-child relationship which may not otherwise be possible where the safety of the other parent is compromised. Furthermore, where family violence & narcissistic abuse is alleged by one parent against the other parent, unless there is a specific allegation that the child has been harmed by a parent and/or the nature of the behaviour by that parent puts the child at a real risk of harm in that parent’s care in the future, the Court will come to the conclusion that the child should spend regular meaningful, unsupervised time with the accused parent.
This is because the court’s paramount consideration is the best interests of the child and the child has a primary right to have a meaningful relationship with both parents, unless at risk of harm in doing so. Where there is only a risk to the other parent’s safety and not the child’s safety, the court will still be satisfied that it can make orders in the child’s best interests for the continuation of the child’s relationship with the other parent. To ameliorate the risks of harm to the parent who has been a victim of domestic violence & narcissistic abuse by the other parent, the nature of the orders is considered. For example, in the particular circumstances of the case, a Court might consider it proper and in the best interests of the child, to protect the victim parent and to ensure that there is no conflict in front of the child, for changeover to occur at a Contact Centre or a parent might be given liberty to utilise an agent for changeover if he/she feels the need.
Case Study: Aitken & Gladstone
In the Case of Aitken & Gladstone  FCCA 966, the Father made an interim application to spend unsupervised time with his six year old child X.
The mother sought an order that the father’s time with the child be supervised. The Department of Health and Human Services, Victoria (DHHS), which had been the applicant in state court child protection proceedings for three years, appeared as friend of the Court. DHHS supported the mother’s case, which was consistent with the existing state Court order.
The parties had been involved in Federal Circuit Court proceedings since 2013, including two parenting trials. There had been long-standing state court intervention orders including an interim accommodation order made in the Children’s Court in 2017 that the father’s time with X be supervised and he had in fact been spending supervised time with the child for the last three (3) years.
Nonetheless, the Department (who maintains superior jurisdiction to the family courts where there are state court intervention orders) either instigated or agreed to the interim parenting application being heard in the Family Law Court whilst State Court orders remained on foot in respect of X. In other words, the Department and the parties bowed to the jurisdiction of the Family Law Courts such that it would be incumbent upon the State Court orders to be discharged by consent upon the court making parenting orders in the Family Law Court’s jurisdiction.
The risks alleged by the Mother as to why she said it was in the child’s best interests to spend supervised time with the Father, were:
- The child’s young age;
- the child was suffering from a serious medical condition with ongoing difficulties;
- The Father was lacking the parenting skills and insight of the child’s particular needs;
- That the Father posed an emotional threat to the welfare of the child;
- That the Father posed an emotional threat to the welfare of the Mother due to coercive & controlling behaviour (narcissistic abuse) by the Father upon the Mother with a consequent impact on her parenting capacity.
Judge Maguire determined that the Mother failed to satisfy the Court that supervision of the Father’s time with the child was both necessary and available.
In His Judgement, he said the following:
Re availability of a supervisor
His Honour was firm with the Mother for making a suggestion that supervision was necessary whilst offering no assistance despite being armed with the Department’s evidence of no professional supervisor being available, saying as follows:
“…[It is the mother who argues that X’s time with the father should continue to be supervised. …She offers no further particulars…except leaving the obligation for the orders that she seeks on the father…She insists on a supervisor but does not nominate one…” 
The Department had specifically stated that it could no longer assist in the provision of a professional supervisor and that the provision of a professional supervisor would in any event be difficult it not impossible.
His Honour stated that the practical affect of an order for supervision would therefore be that no time occurs between the child and the Father. This practical effect of the orders sought by the Mother, was an important factor taken into account by His Honour in his decision.
Re the necessity for a supervisor
None of the risks alleged by the Mother were found by His Honour to supported a real risk of harm to the child in the Father’s care so as to necessitate an order for supervised time.
In respect of the risks of domestic violence & narcissistic abuse by the Father towards the Mother and any consequent impact on the child, His Honour said:
“The mother argues that X’s time with the father should be supervised inter-alia because of family violence allegedly perpetrated on her by the father. My understanding is that she particularises threatening and controlling behaviour by Mr Aitken. The mother does, however, now have the benefit and protection of a State Court Intervention Order for five years. My understanding is that it has never been the rationale of such orders to prohibit time for parents with children. Indeed, arguably, such orders made intra-parents might be seen as allowing the continuation of a parent-child relationship which may not otherwise be possible where the safety of the other parent is compromised. The parties live far apart. The mother has the benefit of an order. I could permit the mother to utilize an agent for changeover if she feels the need.” 
In conclusion, His Honour made the following pertinent comments:
“…I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability.” 
“…I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. …In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department.” 
An interim order was made that X spend unsupervised time with the father on 2 days each week (no overnights) in a similar manner proposed by the Father and further orders were made that the state court order be discharged.
Want more information?
If you want more information on a specific area relevant to you, check our our family law articles:
- Fact Sheet – Children – A guide for separated parents
- How to spend more time with your children
- What is substantial and significant time
- Parental Alienation in Family Court Disputes – Part 1
- Parental Alienation in Family Court Disputes – Part 2
- What age can a child decide where they live?
- Am I a parent?
- I’m Not a parent. Can I apply for a parenting order?
- Can I go to court without doing mediation first?
- Can parenting orders be changed?
- Relocation of Children
- Prevention is better than cure – interim relocation cases?
- International travel with children after separation
- My ex is breaching a parenting order. What do I do?
You may also find the following family court information pages and fact sheets helpful:
- If you agree on parenting arrangements;
- If you do not agree on parenting arrangements;
- Compulsory Family dispute resolution – court procedures & requirements;
- Marriages, Families & separation;
- Parenting orders – obligations, consequences and who can help;
- Complying with orders about children;
- How do I apply for parenting orders?
Do you need more information?
As lawyers experienced in this process we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process, particularly where there has been family violence & narcissistic abuse. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to alleviate your anxiety and to obtain the best practical result for your children without the necessity of lengthy, costly and emotionally draining court proceedings. If a court application is ultimately required, we are deeply familiar with the court system and can use our experience to your advantage.