The welfare of children is paramount

Section 67ZC of the Family Law Act 1975 provides that the court has jurisdiction to make an order that relates to the welfare of children. Furthermore, in making an order for the welfare of children courts are required to have regard of the best interest of a child as the paramount consideration.

The family law Act has a high regard for the welfare and protection of children. This law has made it possible for anyone who is concerned for the welfare, care and development of a child to apply to the court for a parenting order.

This clearly shows that the law contemplates a situation wherein the parents themselves might not be the suitable persons to care for a child or they do not provide the care that is needed by a child.

When it comes to the welfare of a child, it is presumed to be in the latter’s best interest for his parents to have equal shared parental responsibility. Both of the child’s parents are expected to care for the welfare of their child until he turns 18 and thus, must exercise equal shared parental responsibility either by spending equal time with the child or having substantial and significant time with the child.

The presumption of equal shared parental responsibility under Section 61 DA of the Family Law Act is overthrown if there is family violence or child abuse since there would then be a deviation from the best interests of the child principle which is the paramount consideration of the court.

The primary consideration of the court in making an order for the welfare of a child is his best interest. So the court will balance the child’s need of having a meaningful relationship with both parents with the need to protect the child from physical and psychological harm.

There are other considerations that the court will also be taking into account like the views of the child;

  • the ability of the parents to provide for their child’s needs;
  • the relationship of the child with his parents, grandparents and other relevant persons; the relationship of the parents with each other;
  • the difficulty and expense of having a child spending time and communicating with the parent who is not the primary carer; the effect to the child of any change in the living arrangements;
  • and, any other circumstance that the court thinks is relevant to the welfare of the child.