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Court's power to make parenting order

5.25Section 65D gives a broad discretion to the court to “make such parenting order as it thinks proper” and to discharge, vary, suspend or revive some or all of an earlier parenting order.  In exercising its discretion, the court will be guided by the “best interests” principle and the factors set out in section 68F.

Best interests and checklist of factors

5.26Section 65E provides that in deciding whether to make a particular parenting order, the court “must regard the best interests of the child as the paramount consideration”.  “Interests” is defined in section 60D as including “matters related to the care, welfare or development of the child”.

5.27 In 1983 the Family Law Act 1975 was amended to include a checklist of factors to be taken into account which limit the very wide discretion given to judges.  Turner argued that:

“the inclusion of these factors has made not one iota of difference for the law still does not specify the amount of importance to be paid to each.   What is more, there was added a ‘catch-all’ factor - any other circumstance which in the opinion of the court is of significance”.615

5.28The Family Law Council recommended that the checklist already contained in section 64(1)(bb) of the Family Law Act 1975 should be amended to take some extra matters into account.616  Section 68F of the Family Law Reform Act 1995 now provides that the court must consider:

“(a)any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b)the nature of the relationship of the child with each of the child’s parents and with other persons;

(c)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person, with whom he or she has been living;

(d)the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

615 “Custody and Access: are children’s interests being protected?”, Children Australia, vol. 15, No.4, December 1990. 13, at 14.

616 Recommendation 4 at paragraph 49 of the 1994 report.  This included section 1(3)(d) of the English Act “to enable children of different cultural or ethnic backgrounds to be better covered”, and section 1(3)(a) which used “maturity and understanding” but it picked up the language of the United Nations Convention on the Rights of the Child.  See chapter 3 further on the English legislation.

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