General parental behaviour
The Court will consider the behaviour of the parents if it affects the welfare of the children. If a parent does not allow the child to have time with the other parent this may make the other parent’s case stronger should they apply for a ‘lives with’ order. Generally, the Court looks at the way the parents’ behaviour reveals their abilities to raise the children in a responsible and caring way. For example, a refusal to pay child support may indicate a lack of concern for a child’s/children’s welfare.
Each parent’s attitude to contact with the other parent is of particular interest to the Court. Some aspects of parents’ behaviour that may be considered by the Court when making orders include willingness to pay child support, cooperation between parents, antagonism, religion, and other characteristics of the parent’s lifestyle.
The Court may take evidence to show that a particular religion is or will be damaging to the child’s welfare, for example, in creating tension because of different values in different households.
Lesbian or Gay Parent
A number of cases involving gay parents have come before the courts and the decisions have varied. The Court looks at the personality and attitudes of the parties involved and the strength of their relationship to the child. The child’s acceptance or non-acceptance of their parent’s sexuality and the risk of them being exposed to social embarrassment are other matters the Court will consider.
When a parent has been violent to their spouse over a long period of time, they are unlikely to be considered suitable to raise a child.
The Family Law Act 1975 (Cth) section 60B(1)(b) outlines that the object of the Act, in relation to family violence is to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 43(1)(ca) states that among the principles a court is to have regard to is the need to ensure protection from family violence. In section 60CC(2), one the primary considerations of the court in determining the best interests of a child is the need to protect a child from abuse, neglect, harm or family violence. The court can vary orders for spending time with a child or children with reference to family violence orders (Division 11, Family Law Act).
The definition of family violence has been extended in several important pieces of legislation addressing family violence and the measures that are being taken by federal, state and territory governments in an effort to minimise family violence. Tasmania has the Safe At Home strategy, and the Family Violence Act (Tas) 2004.
Under the Family Law Act section 4AB, family violence is not just the application of physical force – not just hitting a person. Family violence is ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. This includes but is not limited to conduct such as:
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Exposure of a child to family violence includes seeing or hearing family violence, or experiencing the effects of family violence, such as seeing bruises on a parent. Situations that may arise include:
- Overhearing threats of physical injury or death;
- Seeing or hearing an assault;
- Comforting or providing assistance after an assault;
- Cleaning up after family violence or property damage; or
- Being present when police or ambulance officers attend an incident of assault.
The presence of family violence in a home, and the exposure of a child/ren to family violence will be taken into account in making spending time orders.