The law in relation to parental responsibility was changed by the Family Law Reform A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1995 (Cth). This Act replaced Part VII of the Family Law Act 1975 (Cth) (‘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 FL Act has most recently been amended by the Family Law A change made to a legal document or Act of parliament. (Shared Parental Responsibility) Act 2006 (Cth), which commenced operation on 1 July 2006. This amending Act changes the terms ‘residence’ and ‘contact’ to become ‘living with’, ‘spending time’ and ‘communicating with’ and attempts to send strong messages, particularly about shared parenting after separation.
Shared parental responsibility
There is a presumption that ‘equal shared parental responsibility’ is in the best interests of children. An order made for equal shared parental responsibility imposes an obligation on the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. to consider ordering ‘equal time’ or ‘substantial and significant time’.
Where an order is made for shared parental responsibility it imposes on parents an obligation to consult on ‘long-term issues’. Long-term issues are specifically defined in the FL Act to 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. The court must also consider whether each parent has in the past fulfilled their responsibilities as a parent.
Best interests of the child
Despite the strong emphasis given to shared parental responsibility after separation, the The most important thing, above anything else. An act of paramount force is one that cannot be made subject to another for its operation. Something of value, such as money, given by one person to another person as part of a contract. 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.
Child abuse or family violence
The court is obliged to take prompt action in relation to allegations of child abuse or family violence.
Note that the presumption referred to above in relation to ‘equal shared parental responsibility’ when making parenting orders does not apply if there are reasonable grounds to believe that a child’s parent (or a person who lives with a parent of the child) has engaged in child abuse or family violence. The FL Act specifically gives priority to protecting children from harm over the benefit to the child in having a meaningful relationship with a parent.
Where it is Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. that a child has been abused or is at risk of abuse or family violence, the court must consider whether interim or procedural orders should be made to obtain Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. about the allegations and to protect the child or any A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. to the proceedings.
New Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute., the Family Law Amendment (Family Violence and An opposing party’s questioning of a witness in a court case. Questioning of your own side’s witness is called examination in chief. of Parties) Act 2018 (Cth), has recently been enacted. This legislation specifically seeks to prevent a A party in a civil action. personally cross-examining a A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. in person, where the cross-examining party is the alleged A person who commits a crime. See also offender. of family violence and the witness is the alleged victim (or vice versa).
In such cases, the legislation requires the cross-examination to be conducted by a lawyer who is acting on behalf of the examining party. This amending legislation has been added to the FL Act as section 102NA.
Sections 69P–69U of the FL Act set out the circumstances when parentage is presumed for the purpose of bringing family law proceedings and sections 69V–69ZD give the court power to order a ‘parentage testing procedure’. Failure to take the test has no penalty but the court can draw inferences (s 69Y(2)). The report on the test is admissible as evidence (s 69ZC).
Parentage testing procedures must be carried out according to the Family Law Regulations 1984 (Cth). Parentage testing must be undertaken by a laboratory that is accredited by the National Association of Testing Authorities, Australia.
The status quo regarding who the children live or spend time with often plays a very important part between the interim (in-between) decision and the final decision. Maintaining the The way things are now, the existing situation. simply means continuing with the caring arrangements the child is currently in, or allowing the child to continue living with the person with whom they have been residing.
It should not be assumed, however, that at the interim The time and place at which a court or tribunal hears the parties argue their case and makes a decision. the court A document that sets out what a person wants to happen to their money and other property after they die. maintain a child caring arrangement that had been in place prior to that hearing. The court is required to analyse and consider the existing arrangement in the light of legislation, which as stated above, places emphasis on sharing parental responsibilities, and possibly the time spent by the child(ren) with each parent, so long as this can be regarded as being in their best interests.
Is conduct relevant?
Because the court has to think about the child’s future welfare in the parent’s household, it may take into account an applicant’s criminal actions, sexual behaviour, drunkenness, illicit drug use, mental stability, moral beliefs or any other characteristic which could affect the way a child would be treated. The court considers who the child is living with at the time of the application, the proposed accommodation for the child and any other consideration that will be relevant to the happiness and wellbeing of the child.
The main point upon which the court will focus will be the effect of a parent’s way of life on the child. If, for example, the applicant is living in another relationship, the court is likely to look closely at the nature of that relationship and at the relationship of the child to the person the applicant is living with.
Wishes of the child
A child’s expressed wishes are taken into account, and the court may give such weight as it considers appropriate to the child’s wishes in all the circumstances, in particular taking into account the child’s age and maturity. However, there is no specific age at which a child may decide with which parent they wish to live.
In ascertaining a child’s wishes, the court has the power to interview the child privately. However, an interview by a judge is now extremely rare, and generally is considered less desirable than considering the information contained in a family report or having independent legal representation for children (see ‘Independent children’s lawyer’, following).
Independent children’s lawyer
A child may have independent legal representation (s 68L). It can be obtained by a court order made on the application of any person or organisation concerned with the welfare of children or on the motion of the court itself. The child may also apply.
When an order for independent representation is made, the court may request that it be arranged and funded by Victoria Legal Aid (VLA). Current VLA funding guidelines considerably restrict the manner in which children are legally represented.
The child’s representative has a duty to both the child and the court to ascertain what is in the best interests of the child. The child’s wishes may ultimately not be Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. by the court to represent the child’s best interests, but the child’s wishes, once expressed, must always be made known to the court.
Certain people (a parent, the spouse or de facto of that parent, or both the parent and spouse or de facto together) may apply to adopt a child. If the other natural parent is still alive, conflict can arise in relation to issues of parental responsibility.
If the court grants leave for an adoption proceeding to commence on the basis of it being in the child’s best interests, the FL Act indicates that this adoption may extinguish the parental responsibility of the other parent (ss 60G, 61E, 65J). For more information, see Chapter 4.5: Adoption and the law.
Reports by family consultants
The court may order at its own suggestion, or by application of either or both of the parties, that a report be prepared by a family consultant. This report, which will go into the court file and be presented to both parties, will consist of that person’s assessment of various matters concerning the child’s welfare.
- The court may order that a report be prepared by a family consultant and the proceedings may be adjourned until it has been obtained. The court has the power to make different orders in relation to reports but generally requires the officer to look at such matters as:
- the relationship between both parents;
- the relationship between the parents and the children and any other relevant party such as a de facto spouse, grandparents and so on;
- the accommodation standard and quality; and
- any other matter which the consultant considers relevant.
2. Under section 55A(2), the court may order that a report be obtained from a family consultant if there is some doubt whether the arrangements made for the welfare of the child in The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. proceedings are proper in all the circumstances.
3. When a report has been obtained in accordance with section 55A(2) or 62G, then the court may:
- supply copies of the report to the parties, their legal practitioners or to any legal practitioner representing a child under the FL Act (s 68L);
- receive the report in evidence; or
- permit oral examination of the person making the report.
When making a A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support., the court may direct that the order be supervised by a family consultant. In practice, unless some specific supervision is ordered, this means that the family consultant is available to the parties to make comments and raise issues of concern to them in relation to the way the operation of the orders are impacting on the child, etc.
The family consultant is able to give assistance where it is reasonably requested by a party. Due to resource limitations this order is now rarely made.
Taking a child overseas
A child cannot be taken overseas without the written To agree to something being done, to approve an action or arrangement. See also informed consent. of any person who has a parenting order. It is also necessary to get the consent of anyone in the process of applying for a parenting order. If there is a possibility of, or threat of, a child being removed from Australia, the court may order that the child’s passport, and that of any other person concerned, be delivered to the court. It may also order that a child be restrained from removal from Australia.
Which court can hear matters related to children?
Proceedings related to children may be instituted in the Family Court, the Federal Circuit Court or the state Magistrates’ Court.
Some undefended parenting applications are heard by state Magistrates’ Courts, where an earlier hearing date can often be obtained. Magistrates’ Courts may also grant interim orders for parenting orders.
If contested (challenged), an application for parenting orders must be transferred to the superior court, unless the parties agree to have the matter heard in a Magistrates’ Court. The Magistrates’ Court can itself decide to transfer the proceedings to the Family Court or the Federal Circuit Court despite the wishes of the parties. Before doing so, the Magistrates’ Court may make such orders as it considers necessary.
Either or both parents of the child, the child, grandparent or any other person concerned in the care, welfare or development of the child may institute proceedings (see ‘Intervening parties’ in Chapter 4.1: A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. and divorce).
Federal Circuit Court of Australia
The Federal Circuit Court (formerly the Federal Magistrates Court) was originally established as a separate court of summary The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. to deal with a range of less complex federal matters previously dealt with in either the Family Court or Federal Court (e.g. immigration matters). It was intended to provide a quicker, cheaper option for litigants.
The areas of family law in which this court has jurisdiction are:
- applications for divorce;
- family law property disputes;
- spousal Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property., including overseas maintenance;
- orders for parenting orders;
- all location and recovery orders regarding children, as well as warrants for the apprehension or detention of a child; and
- A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. of parentage and recovery of child-bearing expenses.
The court has the same child support jurisdiction as the Family Court.
Proceedings may be transferred between the Federal Circuit Court and the Family Court as is appropriate to the case, either on the application of a party or on the courts’ Decision by a body to take action, such as starting an investigation, without a complaint having been made. For example, a court can, ‘of its own motion’, without being asked by the parties in a case, find a person guilty of contempt of court.. Reasons for transfer between the courts generally come down to the complexity of the case and the estimated time the case is likely to take at the final hearing.
In practise the Federal Circuit Court is now dealing with the overwhelming majority of all family law matters that are instigated, while the Family Court continues to deal with the more complex and lengthy proceedings.
To obtain orders
An application must be made, and an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. in support is required. Proceedings are then filed and served, preferably by a process server.
Variation of parental responsibility orders
A person can go to the court and ask that a parenting order be discharged, varied, suspended or revived.
Cessation of parenting orders
A parenting order stops when a child turns 18, marries, enters a In fact, rather than in law. Commonly used to refer to two people living together as a married couple but who are not legally married. They are sometimes said to be in a ‘de facto’ marriage or relationship. See also domestic relationship. relationship, or is adopted.
Effect of death upon residence orders
When the parent having a A parenting order that states who a child will live with – usually one of their parents – after a separation or divorce. for a child dies, and there is a dispute in relation to where or with whom that child should live or spend time with, the other parent is only entitled to residence if the court so orders upon application. The surviving parent can apply to the court, as can any other person who has an interest in the welfare of the child.
Warrants and recover orders
Once a parenting order is made in favour of a person, the other party must comply with that order. The court may issue a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. for the To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. of a person who contravenes the order, and have them brought before the court to be dealt with. The court may also make a ‘recovery order’, authorising the police to recover a child and in so doing, if necessary by force, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place for the purpose of finding a child.
Order for information
The court may order that information about the child’s whereabouts be provided by any Commonwealth department (e.g. Centrelink) or by any other person who may have access to such information.
Interfering with a child subject to an order
No one should interfere with a parenting order made concerning a child without seeking legal advice regarding the consequences for doing so.