The Law Handbook 2024

265 NOTE The law in this chapter is current as at 1 September 2023. Parental responsibility for children Key legislation Key terminology in relation to parental responsibility is contained in Part VII of the Family Law Act 1975 (Cth) (‘ FL Act ’). Some of these terms include ‘parental responsibility’, ‘parenting order’, ‘live with’ and ‘spend time with’. NOTE The law in relation to parental responsibility was changed by the Family Law Reform Act 1995 (Cth). This Act replaced Part VII of the FL Act and changed the terminology that is to be used when dealing with children’s matters from ‘guardianship’, ‘custody’ and ‘access’ to ‘specific issues’, ‘residence’ and ‘contact’. It also introduced the terms ‘parenting orders’ and ‘parental responsibility’. The Family Law Reform Act 1995 has been amended extensively since 2006. The most recent amendment was Family Law Amendment (Information Sharing) Act 2023 (Cth). The law and commentary in this chapter reflects the 2023 changes. Parental responsibility Until 2023, there was a presumption that ‘equal shared parental responsibility’ was in the best interests of children. An order made for equal shared parental responsibility imposed an obligation on the court to consider ordering ‘equal time’ or ‘substantial and significant time’. Following the 2023 amendments, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to the child. The family law courts encourage parents to cooperate post-separation in making important decisions about their child’s future. Where an order is made for shared parental responsibility, it imposes on parents an obligation to consult on ‘major long- term issues’. Major long-term issues include matters such as health, religion, education, change of name and changes to living arrangements that make it significantly more difficult for the child to spend time with the parent. Best interests of the child Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the court remains the best interests of the child. Shared parenting outcomes are desirable, indeed preferable, but only where this is consistent with the best interests of the child. In determining the child’s best interests, the court will consider a number of factors including: a any history of family violence, abuse or neglect involving the child or a person caring for the child; b any views expressed by the child; c the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so. Child abuse or family violence The court is obliged to take prompt action in relation to allegations of child abuse or family violence. 4.2 Parental responsibilities and child support Contributor: Kamalini Jayasena, Deputy Managing Lawyer, Child Support Legal Service, Victoria Legal Aid