The welfare of the children is always on top priority by Alan Weiss
When parents are divorced, the children are put through counselling in order to make them accept the inevitable situation. First, the minor children are the victims of the early stages of a marital break-up. They may be unaware of the symptoms, and then they are just exposed to the final blow of the storm. In every child, there is a different effect.
Most children are fragile objects and are too vulnerable members of a broken home. Many are just pawns in the parental battles, and the effects are manifested when they are adults themselves and are starting their lives as individuals. Therefore, under Australian laws, these children are given equal rights of protection.
Thus, those parents who are involved in divorce proceedings are required to follow strict procedures to make the necessary arrangements for their children. The Family Court of Australia considered the welfare of minor children the top priority in marital struggles. For instance, in the history of Australian common law, the father becomes the guardian or custodian of children, when parents divorce.
However, under the new legislation, the mother was found out to be the best caregiver or custodian of the children. The exemption for this rule is when he is found out to be disqualified by reason of her improper conduct. Parents are also given equal rights to the child, which included visitation rights and decision making concerning their child. This means that both parents can decide on the education and religion of the child and other important issues concerning the welfare of the child.
Under the Family Act Law, the rights of the child in the decision-making process, including the wishes of a child concerning his welfare, is given an equal importance. The court is required to consider any wish expressed by the child and to give this wish such importance, as the family Court considers appropriate and proper under the circumstances of the case.
Under Section 65 of the Family Act provides that in any proceedings under the Act in which the welfare of a child of the marriage is relevant, the court may order that the child be separately represented. This is the intention of the court in order to make the best arrangement of the affected minor children. The arrangements have to be described in the divorce application form and will take up during the hearing of the divorce of the parents.
One of the most important matters to be taken account in determining the welfare of the minor children is the custody issue. Therefore, in determining who should have the custody of the minor children, the courts consider the nature of the child's relationship with each parent and with other persons. It is also taken into importance thee affect on the child of any separation from either parent, or any child or other person with whom the child has been living.
The desirability and effect of any change in the existing arrangements for the care of the child is also examined by the court, including the attitude to the child and to the responsibilities and duties of parenthood demonstrated by each parent. Likewise, the financial capacity of each parent or any other person to provide adequately for the child, including his/her emotional and intellectual needs and any other factor or circumstance (including the education and upbringing of the child) that the court considers the child's welfare requires to be taken into account.
Nevertheless, the court still has a wide discretion to make orders, provided it always regards the welfare of the child as the paramount consideration.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.