Subject to any court order, both parents have parental responsibility for a child under 18 when they separate. They both have a duty to support the child financially.
The Family Law Act 1975 focuses on the children’s rights and the responsibilities that each parent has towards their children.
Shared parental responsibility
Under Australian Family Law, there is the presumption that both parents will have an equal parental responsibility such that they will both have a role in making decisions about major long-term issues.
The presumption is not applicable if the parent engaged in abuse of the child or family violence.
It is also not applicable if it is not in the best interests of the child.
Equal time and shared parental responsibility is not the same. Parents will spend equal time with a child only where they can agree to this arrangement or a court finds that equal time is in the best interests of the child and is the most suitable arrangement.
Dispute resolution and family relationship centres
A Family Relationship Centre can help provide information about family relationships at all stages. This includes forming new relationships, dealing with separation and overcoming relationship difficulties.
Staff will talk with you to help you focus on your children’s needs and help you decide what to do next, if you are going through separation.
These Centres specialise in providing joint Family Dispute Resolution mediation sessions with family members or the other parent to help you agree on parenting arrangements.
Centre staff may also refer you to other specialist services that can help.
Parenting order, plan and guidelines
When parents are not able to agree on the arrangements for a child, then either parent can apply to the Court for a decision about what is best for the child. If parents do agree, the court may also make legally binding consent orders. Any orders about children are called parenting orders. When a parenting order is made, each person affected must follow it.
When making a parenting order, the Court has to consider a child’s best interest.
A parenting order can deal with one or more of the following:
- who a child will live with
- the allocation of parental responsibility
- how the child will communicate with a parent they do not live with, or other people
- how much time the child will spend with each parent and with other people, such as grandparents
- any other aspect of the care, welfare or development of the child
Major long term issues
‘Major long-term issues’ is defined in Australian Family Law as “issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
- The child’s education (both current and future); and
- The child’s religious and cultural upbringing; and
- The child’s health; and
- The child’s name; and
- Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
A decision by a parent of a child to form a relationship with a new partner is not itself a major long-term issue. However, the decision will be a major long-term issue if, for instance, the relationship with the new partner involves the parent moving to another area and the move will make it much more difficult for the child to spend time with the other parent.
Any allegation of family violence or abuse is not tolerated and is taken very seriously.
It is crucial that all allegations are reported and investigated. Steps to protect actual and potential victims need to be investigated as soon as possible.
It is widely known that the risk of family violence increases at the time of separation due to the increase in conflict. Women and men who have been the subject of violence can take action to protect themselves by way of an Apprehended Domestic Violence Order (ADVO). There are also several community agencies and helplines that offer free advice and representation at Court.
In instances of abuse, a notification should be made immediately to Family and Community Services through the Child Protection Helpline on 132 111 in relation to any children involved in or witness to such incidents.
In cases where there is abuse or violence present, the Court can impose certain restrictions on the perpetrator concerning the time they can spend with any children involved.
Contravening a parenting order means not obeying the parenting order.
A person contravenes an order if they:
- make no reasonable attempt to comply with the order
- intentionally fail to comply with the order
- intentionally prevent compliance with the order by a person who is bound by it, or
- aid or assist a contravention of the order by a person who is bound by it.
Most parenting orders include terms about where the children will live and who they will spend time with. Therefore a contravention of the orders can occur if a person refuses to return or deliver the child to a person with whom the child lives or spends time with.
Child Abduction is when one parent or guardian detains, takes, or conceals a child from the other parent or guardian without their consent or authorisation of the courts.
It can happen in circumstances where the parents have separated, although it is not exclusive to this. Parental Child Abduction can occur within the country where the child has been residing, or the child can be taken overseas.
If you are the other parent or guardian and you want to recover your child in Australia, you can apply for a recovery order. Others that can apply include – a person who the child lives with, spends time with or communicates with as stated in a parenting order, a grandparent, or a person concerned with the care and welfare.
A recovery order is used to direct persons such as a police officer to take action to find, recover and return a child to the designated parent or guardian.
The recovery order can also prohibit the person from again taking or removing possession of the child in an effort to prevent parental child abduction from occurring again.
Order enforcement and non-compliance in children cases
Each person affected by a parenting order must comply with it.
You need to do everything a parenting order says – including taking all reasonable steps to ensure that the terms of the order take effect.
You also need to positively encourage your child (or children) to comply with the orders.
The order stays in force until a new parenting order or parenting plan changes it in some way.
Even if the circumstances or needs of you, the child or the other party change – the court order applies until it is formally changed by a court or, in some instances, you enter into a parenting plan with the other party. Oftentimes people talk to each other about changing arrangements set out in a parenting order. It is crucial to note that these conversations will not change the order even if you and the other party agree.
Children and relationship factors
Australian Family Law requires the court to look at the following factors when ruling on what is in the best interest of the child:
1. The benefit of a child having a meaningful relationship with both parents
The objects of the Family Law Act are to ensure that a child has a meaningful relationship with both parents. Thus, it is a primary consideration when looking at the care arrangements for the child.
2. The need to protect the child from physical or psychological harm, abuse, neglect or family violence
Any parenting arrangements must not put the child’s safety at risk. This factor is given greater consideration, even where it may conflict with ensuring a meaningful relationship with both parents.
3. The nature and history of the child’s relationship with each parent
The previous and current relationship between the parent and child and the role of the parent in the child’s life is factored into the decision making process.
4. How a change to the circumstances of the child may affect them
If the child has been living with one parent, the court considers how being separated from that parent and/or other people associated with that parent would impact them.
5. The practical difficulties that may occur with certain custody arrangements
This Court looks at financial, lifestyle or education barriers that might occur if one parent were to be granted majority custody.
6. The wishes expressed by the child
The wishes of a child are taken into high consideration. However, the court must also consider factors such as the age and maturity level of the child and their ability to interpret the situation when expressing their wishes.
7. If there is any history of family violence
This is important in determining who is most suitable to care for the child.
8. Each parent’s ability to provide for the emotional and intellectual needs of the child
This is of particular concern if the child had emotional or intellectual disabilities, as the court will need to ensure that those needs are cared for appropriately.
9. Each parent’s attitude and demonstrated commitment to their role as a parent
If a parent has shown no evidence of being a dedicated parent to the child, the court will take this into careful consideration.
10. Any other factors that the court feels relevant to your specific circumstances
Each child custody case is different, so the courts will ensure that any relevant factors are considered before the final child arrangements ruling is made.
Shared care is a parenting arrangement where both parents spend a similar or equal amount of time to care for their children. Normally, in shared care, the children go between homes every other week. Shared care is established on the right of the child to know and have a meaningful relationship with both parents.
Shared care is granted depending on what is in the best interest of the child.
The court will consider:
- The benefit the child receives from the living arrangement
- How practical it is for the child to spend equal time living with both parents
- The physical and psychological health and safety of the child
The court always considers the safety of the child as a priority over the child having a relationship with both parents.
Grandparents can use the Family Law Act to apply to the court for orders that their grandchildren spend time with them or live with them. This can occur whether the parents of the children are together or separated.
Australian Family Law acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Family Law Act as being able to apply to a court for orders relating to their grandchildren. However, it is important to be aware that this does not mean that grandparents automatically have a right to spend time with the children.
Children’s views and issues
The Court is required to consider any views expressed by the child and any factors, such as the child’s level of understanding or maturity, that the Court thinks are relevant to the weight it should give to the child’s views.
A child’s views are assessed in the particular circumstances of the case. The Court can consider, for instance, whether the views of the child have been influenced by another person, any protective factors and the desirability of maintaining a long term relationship with a parent with whom a child may have a negative relationship with at that point in time.
There are times when a child’s involvement in a Court proceeding is necessary in assisting the Court to determine the appropriate living arrangements for the children. Children are normally interviewed if the parents agree or if the Court orders that a Family Report be obtained. The views of the children are normally ascertained as part of that process. In some instances, an Independent Children’s Lawyer can be appointed to represent children and put their views before the Court.
Child Support Agreements
Child support refers to the obligation of parents to financially support their children. A child Support Agreement is a written agreement about child support payments where both parties get independent legal advice.
The Child Support Scheme will calculate the sum to be paid using a formula based on the income of both parents, the costs of raising children, the number of children in the family, and the amount of time each parent spends with their child.
To make a binding child support agreement, both parties must agree on an amount for your child support payments. The amount can be less or more than the amount that would be payable under a child support assessment.
To receive child support under a binding agreement, a parent needs to have at least 35% care of a child. Both parents have to seek independent legal advice and each get a legal certificate. If not, the binding agreement will not be valid. However, a limited child support agreement with the other parent will still be available.
Parents must meet all of these obligations:
- pay your child support in full and on time if you’re the paying parent
- ensure you tell Services Australia what care arrangements are in place for your children
- lodge your tax return on time
- report your income accurately
- tell Services Australia about any changes in circumstances.
Child Support payments can be disputed. To dispute a payment, an application must be filed to the Child Support Agency. If the Agency acts in a way contrary to the interests of the filing party, further steps can instigate a review.