Under the Family Law Act (“the Act”), children have the right to know, be cared for by and spend regular time with both parents.
The Court applies a presumption that both parents of a child have “equal shared parental responsibility” (“ESPR”), but not in cases involving family violence, abuse or neglect.
Parental responsibility covers major long-term decisions (such as education, religion, health, etc), as well as day-to-day decisions (such as bedtimes, meals, attire, etc). Parents do not generally have an obligation to consult or agree in relation to day-to-day decisions concerning the child. Parents have ESPR in relation to major long term decisions concerning their child which means they must consult one another and make these decisions jointly.
In the event that the Court determines ESPR does apply, it must then consider making an order that the children spend “equal time” with both parents if that it is in the children’s “best interests” and is “reasonably practicable”.
If the Court does not determine equal time as being appropriate it must then consider making an order for a parent to spend “substantial and significant time” with the children, if, that it is in the children’s “best interests” and is “reasonably practicable”. “Substantial and significant time” is defined in the Act to mean a combination of school days (mid-week time) and non-school days (weekends), holidays and non-holidays, as well as time which allows the parent to be involved in the child’s routine and occasions/events that are of particular significance to the child and each parent.
If the Court determines that neither equal time nor substantial and significant time is appropriate, then the Court has the discretion to make whatever orders they consider to be in the child’s best interests.
Best Interests of Child
The paramount consideration in determining parenting arrangements is what is in the best interests of the children. When assessing their best interests, the Court will consider the relevant primary and secondary considerations which are set out in section 60CC of the Act.
In determining what is in a child’s best interests, the Court must primarily consider the benefit of the child having a meaningful relationship with both parents and the need to protect the child from any risk of harm (being the most important consideration).
Secondary considerations that the Court takes into account include:
- Any views expressed by the child (depending on their maturity and level of understanding);
- The willingness of the parents to encourage and facilitate a relationship between the child and the other parent;
- The nature of the relationship of the child with each of the child’s parents and other people, such as grandparents and other relatives;
- The likely effect of any changes in the child’s circumstances;
- Any practical difficulty and expense of a child spending time with and communicating with a parent;
- The capacity of each parent to provide for the needs of the child;
- The right of the child to enjoy his or her culture with other people who share that culture;
- The attitude of both parents to the child and to the responsibilities of parenting;
- Any family violence and family violence orders that apply to the child or a member of the child’s family;
- The extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child or failed to take the opportunity to spend time with or communicate with the child or participate in making major long term decisions.
The Court has the discretion to take into consideration any other fact or circumstance that the Court thinks is relevant when determining the children’s best interests.
Finalising Parenting Arrangements
Parenting arrangements can be resolved either by:-
- The parties reaching agreement about the arrangements for the children and parental responsibilities and
- sign consent orders which are then approved by the Court and become legally binding; or
- sign a Parenting Plan which is not legally binding but simply evidence of the parents’ intention
- Where there is no agreement reached, applying to the Court to have a Judge determine what arrangements are appropriate for the children on a final basis.
Family Dispute Resolution
Before you can file proceedings in Court seeking orders in relation to parenting matters, parents are required to have attended upon a family dispute resolution practitioner to make a genuine effort to resolve their parenting dispute and obtained a section 60I certificate demonstrating that attendance.
There are limited exceptions to the requirement to attend family dispute resolution mediation, including but not limited to where a matter is urgent or whether there are allegations of domestic violence. A section 60I mediation certificate will allow you to commence proceedings in Court.
It is important to seek specific advice regarding your circumstances as this Factsheet provides general information only and does not constitute legal advice.