The paramount consideration of the court continues to be the best interests of the child. Parental issues dealt with by the court include shared parental responsibility, violence, status quo, wishes of the child, parentage testing, adoption, taking a child overseas and supervision orders.

Contributors

Noah Eidelson

Barrister

Kamalini Jayasena

Deputy Managing Lawyer, Child Support Legal Service, Victoria Legal Aid

Parental responsibility for children

Last updated

1 July 2022

Key legislation

The law in relation to parental responsibility was changed by the Family Law Reform Act 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 Amendment (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 court 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.

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.

The legislation sets out that the primary (but not only) considerations in determining a child’s best interests are:

  1. the benefits to the child of having a meaningful relationship with both their parents; and
  2. the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.

The legislation also makes it clear that where there is tension between the two primary considerations listed above, the court should give greater weight to the need to protect the child from physical or psychological harm.

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 alleged 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 evidence about the allegations and to protect the child or any party to the proceedings.

The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth), has been enacted. This legislation specifically seeks to prevent a litigant personally cross-examining a witness in person, where the cross-examining party is the alleged perpetrator 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. Funding for the lawyer is provided to each state legal aid organisation by the federal government.

Parentage testing

The FL Act sets out the circumstances when parentage is presumed for the purpose of bringing family law proceedings. This Act also gives the court power to order a ‘parentage testing procedure’. Failure to take the test has no penalty but the court can draw inferences. The report on the test is admissible as evidence.

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.

Status quo

The status quo regarding who the children live or spend time with often plays a very important part between the interim decision (pending the final hearing) and the final decision.

Maintaining the status quo 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 hearing the court will 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 a person’s criminal actions and history, sexual behaviour, abuse of alcohol, illicit drug use, mental stability, moral beliefs or any other characteristic that could affect the way a child would be treated.

The court considers who the child is living with and spending time with at the time of the application, the proposed living arrangements for the child and any other consideration that will be relevant to the happiness and wellbeing of the child.

The court will focus on the particular circumstances concerning each  parent’s/carer’s  current and past way of life and how this impacts the child. If, for example, a party to the proceedings is living in another relationship, the court is likely to look closely at the nature of that relationship and at the nature of the child’s relationship with the person with whom the party  is living.

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.

Independent children’s lawyer

A child may have independent legal representation (s 68L FL Act). 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) (for proceedings brought in Victoria).

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. They do so by bringing before the court evidence from persons with expertise who may have had involvement with the child (e.g. teachers, doctors and mental health experts) as well as the family report normally prepared to assist the court in its determinations. The child’s wishes may ultimately not be deemed 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.

Adoptions

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.

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.

  1. 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:
  1. the relationship between both parents;
  2. the relationship between the parents and the children and any other relevant party such as a de facto spouse, grandparents and so on;
  3. the accommodation standard and quality; and
  4. any other matter which the consultant considers relevant.

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 divorce proceedings are proper in all the circumstances. 

3. When a report has been obtained, the court may: 

  1. supply copies of the report to the parties, their legal practitioners or to any legal practitioner representing a child under the FL Act; 
  2. receive the report in evidence; or 
  3. permit oral examination of the person making the report.

Supervision orders

When making a parenting order, the court may sometimes 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 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 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 were historically instituted in the Family Court, the Federal Circuit Court or the state Magistrates’ Court. (See ‘Merger of the Family Court and the Federal Circuit Court’, below.)

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 superior court despite the wishes of the parties. Before doing so, the Magistrates’ Court may make any ‘holding’ 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.

Federal Circuit Court of Australia

The former Federal Circuit Court was originally established as a separate court 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 had jurisdiction were:

  1. applications for divorce;
  2. family law property disputes;
  3. spousal maintenance, including overseas maintenance;
  4. orders for parenting orders;
  5. all location and recovery orders regarding children, as well as warrants for the apprehension or detention of a child; and
  6. determination of parentage and recovery of child-bearing expenses.

The court had the same child support jurisdiction as the Family Court.

Merger of the Family Court and the Federal Circuit Court

The federal parliament has passed legislation that mergers the Family Court of Australia and the Federal Circuit Court – the two main courts that deal with family law matters in Australia.

The new court is called the Federal Circuit Court and Family Court of Australia (FCFCA). It commenced operating on 1 September 2021.

The former Federal Circuit Court is now known as Division Two of the new court and the former Family Court is now known as Division One of the new court.

Parenting orders

To obtain orders

An application must be made, and an affidavit 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 de facto relationship, or is adopted. 

Effect of death upon residence orders

When the parent having a residence order 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 recovery orders

Once a parenting order is made, each other party must comply with that order. The court may issue a warrant for the arrest 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.

Commonwealth Family Violence and Cross-examination of Parties Scheme

Since September 2019, personal cross-examination has been banned in family law proceedings in certain circumstances where allegations of family violence have been raised. For more information, see ‘Cross-examination ban’ in ‘Changes to the Family Law Act and the family courts‘.

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