Family Law and Parenting Matters: An Overview

Parental Responsibility

Parental responsibility for a child is defined as all the duties, powers, responsibilities and authority which you as a parent legally have in relation to your children [1]. This includes the ability to make decisions regarding your child’s name, living arrangements, education, medical care, and upbringing.

Unless the Court makes a parenting order to the contrary, both parents have parental responsibility for any child under the age of 18 [2,3]. This parental responsibility continues regardless of whether the relationship between the parents changes [4]. This means that, following separation, both parents still have a role in fulfilling certain duties and making decisions concerning their children.

In some cases, separated parents are unable to come to an agreement regarding significant issues affecting their children (such as education or medical care). In those cases, parental responsibility may need to be reallocated to ensure the children’s needs are still met in the absence of agreement between the parents. For example, the Court may decide to:

divide parental responsibility between the parents (for example, make one parent responsible for education and another parent responsible for medical care);
remove parental responsibility from one or both parents; or
assign parental responsibility to a legal guardian.

To reallocate parental responsibility, the Court will need to make a parenting order.

Parenting Orders

Parenting orders are directives the Court makes concerning parenting arrangements for the child. Where parents are unable to agree regarding significant issues affecting their child, then either or both parents may apply to the Court for a parenting order. The law permits that any person concerned with the care, welfare or development of a child may apply for such an order, which means even people other than parents, such as grandparents and extended family members, may apply for a parenting order.

A parenting order may confer responsibility for a child upon a person, subject to the limitations of the order [5]. It will not necessarily diminish the parental responsibility of any other person for the child unless expressly stated or required to give effect to the order [6].

Parenting orders may address one or more of the following [7]:

Whom the child will live with
How much time the child will spend with each parent
How shared parental responsibility (if applicable) will be managed
How the child will communicate with others (e.g., the other parent)
How the child will be maintained
The process for resolving disputes about the orders
Any other factor relating to the care, welfare or development of the child, or the parental responsibility in relation to that child

The Court may also consider other factors, such as supporting the relationships the child has with people in their lives.

Interim Parenting Orders

If there is an important parenting issue that needs to be addressed, or if the parenting matter is urgent, the Court may make an interim (temporary) parenting order. For example, you may seek an interim order if you have concerns for your child’s safety or if you have concerns that your child may be relocated before a final hearing. These interim orders may be modified by mutual agreement between the parties or by the Court before or at the final hearing.

Pre-action Procedures

Overview of Pre-action Procedures

Parenting matters are heard in the Federal Circuit and Family Court of Australia (FCFCOA). However, prior to going to court, parties must:

take genuine steps to resolve the issues in dispute; and
file a certificate from a family dispute resolution practitioner (FDR certificate/s 60I certificate).

These are known as pre-action procedures.

What Is the Aim of Pre-action Procedures?

The aim of pre-action procedures is to:

encourage early and full disclosure about relevant issues;
explore possibilities for resolution;
limit costs;
resolve disputes without the need to go to court; and
where a dispute cannot be resolved, narrow the issues in dispute.

Whom Do Pre-action Procedures Apply To?

Pre-action procedures apply to:

anyone considering bringing a case before the FCFCOA;
anyone named as a respondent in a case; and
their lawyers (if any).

Except where one of the below exemptions applies, all prospective parties to a matter must follow the pre-action procedures.

What Are the Pre-action Procedures?

The pre-action procedures are as follows:

Read the pre-action procedures.
Make inquiries about dispute resolution services such as family counselling, negotiation, conciliation or arbitration, and, when safe to do so, invite the other party to participate.
Where dispute resolution is unsuccessful, write to the other party setting out your claim and exploring options for settlement.
Comply, as far as practicable, with the duty of disclosure by exchanging relevant documents.

What Are the Exemptions to Compliance With Pre-action Procedures?

You may be exempt from compliance with the pre-action procedures when:

you are applying for parenting orders and there are allegations of child abuse or family violence, or there is a risk of child abuse or family violence;
you are applying for financial orders and there are allegations of family violence or a risk of family violence;
your application is urgent;
the applicant would be unduly prejudiced if required to comply with pre-action procedures;
a previous family law application has been filed by one of the parties in the last 12 months;
the proceeding is an application for divorce only; or
the proceeding involves a court’s jurisdiction in bankruptcy.

Genuine Steps and FDR Certificate (s 60I Certificate)

Pre-action procedures are in place to ensure that, prior to commencing proceedings, parties take genuine steps to resolve the issues in dispute. Prior to commencing parenting proceedings, parties who have a dispute about children must make a genuine effort to resolve their dispute through family dispute resolution (FDR).

A genuine effort involves a real, honest exertion or attempt to resolve the issues in dispute. It must be more than a superficial effort or one that is false or a pretence. The effort should be realistically directed at resolving the issues that are ultimately going to be the subject of a court application.

To establish whether a genuine attempt has been made, parties seeking to bring parenting proceedings must file a certificate from an FDR practitioner, known as a section 60I certificate. This certificate will state one of the following:

The person did not attend FDR due to the refusal or failure of the other party or parties to attend (‘failure to attend’ certificate).
The person did not attend FDR because the practitioner did not consider it would be appropriate to conduct FDR (‘not appropriate’ certificate).
The person attended FDR, conducted by the practitioner, and all parties made a genuine effort to resolve the issue or issues in dispute (‘genuine effort’ certificate).
The parties attended FDR, conducted by the practitioner, but one or more of them did not make a genuine effort to resolve the issue or issues in dispute (‘non-genuine effort’ certificate).
The parties began FDR, but, partway through, the practitioner decided it was not appropriate to continue (‘not appropriate’ certificate).

There may be a valid reason as to why parties have been unable to come to an agreement at FDR and why the matter may need to proceed to court. However, if a party has not made a genuine effort to resolve the issues in dispute, the Court may award costs against that party.

Parenting Plans

When making a parenting order, courts will have regard to parenting plans. A parenting plan is a written agreement between parents that sets out the care arrangements for the child. This may include the day-to-day responsibilities of each parent and consulting mechanisms for important, long-term decisions concerning the child.

There is no particular form for parenting plans, but they must be:

in writing;
dated; and
signed by each party.

Enforceability of Parenting Plans

Unfortunately, parenting plans are not legally enforceable. This means that a party who is in breach of a parenting plan will not face any legal sanctions. Parties, therefore, should not rely on a parenting plan.

If parties wish to be legally bound by an agreement, they need to file an application for consent orders. Consent orders are orders made by the Court giving legal effect to the terms and conditions agreed by the parties.

Equal Shared Parental Responsibility

The Court’s power to make a parenting order is subject to the presumption of equal shared responsibility. This presumption states that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” [8].

This means that, in making a parenting order, the Court presumes that both parents share equal responsibility for making major, long-term decisions relating to the child. This presumes that, even following separation, it is in the child’s best interests for both parents to continue to be involved in major aspects of the child’s life.

Impact of Family Violence and Child Abuse

The presumption of equal shared parental responsibility may be rebutted when the Court is satisfied that a parent or a person who lives with a parent has engaged in:

abuse of the child or another child in the household; or
family violence [9].

The best interests of the child are paramount. Therefore, even though the child has a right to have a meaningful relationship with the parent, this will never supersede the need to protect the child from physical or psychological harm.

Equal Time

If a parenting order provides for equal shared parental responsibility, then the Court will consider:

whether equal time is in the best interests of the child; and
whether equal time is reasonably practicable.

If the above are true, the Court will consider making an order for equal time. However, it is important to note that there is no presumption of equal time.

Substantial and Significant Time

If the Court finds that spending equal time with each parent is not in the best interests of the child or not reasonably practicable, then the Court must consider:

whether substantial and significant time is in the best interests of the child; and
whether substantial and significant time is reasonably practicable [10].

Substantial and significant time requires that [11]:

the child spends time with the parent on both weekends and holidays;
the child spends time with the parent on days that are not weekends or holidays;
the parent spends time involved in the child’s daily routine;
the parent spends time involved in special events and occasions in the child’s life; and
the child spends time with the parent on special events and occasions in the parent’s life.

If the Court considers that substantial and significant time is in the child’s best interests and is reasonably practicable, the Court will consider making an order for substantial and significant time.

Reasonably Practicable

Criteria for Determining ‘Reasonably Practicable’

The criteria used to determine whether equal time or substantial and significant time is ‘reasonably practicable’ are [12]:

How far apart the parents live. For example, if the parents live five hours apart, equal or substantial and significant time may not be reasonably practicable, as the travel distance would be an exhausting, onerous obligation for the child and parents. Travel to and from school would also likely be onerous. However, if the parents live in the same suburb, travel between the two homes would be easy and therefore equal or substantial and significant time would likely be considered reasonably practicable based on this criterion.
The parents’ current and future capacity to implement equal or substantial and significant time. For example, where a parent is working multiple jobs and/or long hours and the child is likely to be either left in childcare or unattended in the home for long periods of time, equal or substantial and significant time may not be reasonably practicable. Parents with significant work, family or caring commitments (such as care of elderly parents) may have less capacity than a parent who does not have these commitments. However, the Court will also consider future capacity, such as whether current commitments demonstrating a lack of current capacity will continue in the long term, as is the case with short-term caring arrangements.
The parents’ current and future capacity to communicate with each other and resolve difficulties. For example, where parents are currently unable to communicate effectively with each other to resolve difficulties concerning their children, equal or substantial and significant time is unlikely to be reasonably practicable due to an inability to co-parent effectively. However, the Court will also consider future capacity to communicate, which may be able to be demonstrated by progress made through family dispute resolution or counselling.
The impact of the arrangement on the child. For example, if a child has not seen one parent for several years, a sudden order for equal or substantial and significant time may have a detrimental effect on the child and may therefore not be reasonably practicable. Similarly, if a parent is not sufficiently set up to have a child for equal or substantial and significant time (for example, the child does not have their own room or bed and will have to sleep on the couch), such an order may not be reasonably practicable.
Any other matters the Court thinks are relevant. The Court will also consider any other factors that may determine whether equal or substantial and significant time is reasonably practicable (for example, the impact of a child having to start attending a new school).

Where Not Reasonably Practicable

In cases where the Court considers that neither equal nor substantial and significant time is reasonably practicable, the Court will revert to its paramount consideration, which is to consider what parenting order is in the best interests of the child [13].

Best Interests of the Child

The best interests of the child is the Court’s paramount consideration when making parenting arrangements [14]. Because the focus is on the child’s best interests, the personal viewpoints of the parents may be considered less if their views conflict with what the Court decides is best for the child.

Purpose of Determining the Best Interests of the Child

The purpose of legislation relating to the best interests of the child is to ensure that children’s best interests are met by [15]:

making sure children have the benefit of a meaningful relationship with both parents [16];
protecting children from physical or psychological harm, including abuse, neglect, or family violence [17];
providing children with adequate and proper parenting [18]; and
ensuring parents meet their duties and responsibilities around the care, welfare and development of their children [19].

The principles underlying this purpose are that, unless contrary to the child’s best interests [20]:

children have the right to know and be cared for by both parents, regardless of the parents’ relationship status;
children have the right to regularly spend time and communicate with both parents and other significant people in their lives;
parents jointly share the duty and responsibility of their child’s care, welfare, and development;
parents should agree on the future parenting of their child; and
children have the right to not only enjoy their culture, but also to enjoy it with others who share that culture.

Primary Considerations

When determining what is in the best interests of the child, the Court’s primary considerations are:

the benefits of the child having a meaningful relationship with both parents; and
protecting the child from physical or psychological harm, including family violence [21,22].

It is important to note that there is no presumption that there is a benefit to all children having a meaningful relationship with both parents. The Court will examine and weigh all the evidence to determine whether a meaningful relationship with both parents is in the child’s best interests [23]. When determining what order to make, the Court will also give greater weight to the need to protect the child from harm [24].

Additional Considerations

When determining the best interests of the child, the Court will also consider [25]:

the views of the child, including their maturity and level of understanding;
the nature of the child’s relationship with each parent and other person(s) (such as grandparents);
the extent to which each parent has/has not participated in decision-making concerning major, long-term issues in their child’s life, spent time with the child, and communicated with the child;
the extent to which each parent has/has not fulfilled their obligation to maintain their child;
the likely effect of changes on the child, including separation from a parent or another child or person the child has been living with,
the practical difficulty and expense of spending time with and communicating with a parent and whether that will substantially affect the child’s right to have regular personal relations and direct contact with both parents;
the capacity of each parent and other person(s) (such as grandparents) to provide for the child’s needs, including emotional and intellectual needs;
The maturity, sex, lifestyle and background of the child and either of the child’s parents;
Aboriginal or Torres Strait Islander culture and traditions;
each parent’s attitude to the child and their parental responsibilities;
whether any family violence involving the child or a member of the child’s family has occurred;
whether a family violence order applies or has applied;
whether it is preferable to make the order least likely to lead to further proceedings relating to the child; and
any other fact or circumstance the Court thinks is relevant.

Views of a Child

When family law matters involve children, parents are often concerned about whether the Court will consider the child’s views or wishes. The Court does not generally hear directly from children in family law matters, although it can in some very rare circumstances. Children do not usually go into court or present evidence to the Court, as the aim is to keep children as removed from litigation and the court process as possible.

How Can a Child’s Views Be Heard in Court?

Children’s views, therefore, are generally established through family reports, independent children’s lawyers, or any other appropriate means, such as external reports or interviews with the judge [26,27,28].

Family Reports

Family consultants conduct child and family assessments to prepare independent reports for the Court. These reports assist the parties and the Court to determine arrangements that will provide the best outcomes for the children.

The two main types of reports are:

child impact reports, which are shorter reports generally ordered early in proceedings; and
family reports, comprising more in-depth reports generally ordered for matters at the final stage of proceedings.

Family consultants will conduct a series of interviews, including individual interviews with each child and parent, as well as interviews with other significant people such as adult siblings, step or half-siblings, partners, or grandparents. Children who are older and mature enough are usually interviewed separately from adults to provide an environment where they can comfortably express their views.  The family consultant may also observe interactions between the children and each parent.

Following their interviews and observations, the family consultant will produce a report for the Court. This report includes any views expressed by the child, thus enabling the views of the child to be heard in court.

Does the Court Have to Follow the Views of the Child?

Children do not have to express a view [29]. However, if they do, while the Court may take the child’s views into consideration, they are not bound to follow any request. The Court has discretion to decide what weight, if any, to give the child’s views. If the Court decides that the views expressed by the child are not in their best interests, the Court will be unable to make an order to that effect.

A significant point to note is that it is not appropriate for children to have, or to feel as though they have, decision-making powers relating to their parent’s separation. It is not up to the child to decide what arrangements will be put in place for their care, even if the Court considers their wishes.

When Is It Not Appropriate for the Court to Consider the Views of the Child?

There are several circumstances where it may be inappropriate for the Court to consider the views of the child. These include where the child is too young or immature or cannot/does not understand the matter sufficiently to make an informed decision.

Each case must be assessed on an individual basis to determine whether the views of the child are in the best interests of the child. If the views of the child are not in the child’s best interests, or if it becomes apparent that the child has been negatively influenced by either party,  the Court may decide to reject the wishes of the child [30]. However, if the Court rejects the child’s wishes, it must provide clear reasons for such rejection, particularly if an independent children’s lawyer has submitted that the child’s views should be given weight [31].

Independent Children’s Lawyers

An independent children’s lawyer (ICL) is an independent, neutral party to family law proceedings. As children are not usually allowed to attend court, the Court will sometimes appoint an ICL to represent the child’s best interests, particularly when the Court requires an independent assessment.

An ICL will carefully consider the evidence of all parties, including views expressed by the child. The ICL will then put forward their recommendation to the Court about what they believe to be in the child’s best interests.

Who May Apply for a Child to Have an ICL?

An application for an ICL to be appointed may be brought by:

a child;
an organisation concerned with the welfare of children; or
any other person.

Guidelines for When an ICL Should Be Appointed

When reviewing an application for an ICL to be appointed, the Court will consider certain guidelines. The application is likely to be successful where:

there are allegations of child abuse;
there is an apparently intractable conflict between the parties;
the child is alienated from one or both parents;
there are issues of cultural or religious differences affecting the child;
the sexual preferences or conduct of either party or another significant person are likely to impinge on the child’s welfare;
there are issues of significant medical, psychiatric or psychological illness relating to either party, another significant person, or a child;
neither party may be a suitable resident parent;
a mature child is expressing strong views that could result in a change to a long-term relationship;
one party proposes for a child to be permanently removed from the jurisdiction (relocation);
there is a proposal to separate siblings;
none of the parties are legally represented; or
the child’s interests, particularly medical interests, are not adequately represented by one of the parties.

What Is the Role of an ICL?

The role of an ICL is to form an independent view, based on the available evidence, regarding what is in the best interests of the child. The ICL must always act according to what they believe to be in the child’s best interests. If an ICL is convinced that a particular course of action is in the child’s best interests, then they must make a submission to the Court recommending that course of action. Although an ICL represents the best interests of the child, an ICL is not the child’s personal legal representative and is not obliged to act on a child’s instructions.

What Are the Specific Duties of an ICL?

An ICL has specific duties, including the duty to act impartially while dealing with parties to the proceedings. They also have a duty to ensure any views expressed by the child are fully put to the Court and to facilitate an agreed resolution of matters at issue in the proceeding according to the child’s best interests.

If a report or any other document that relates to the child is to be used in the proceedings, an ICL must analyse the report or document, identify matters that will be most significant for determining the child’s best interests, and bring these matters to the attention of the Court. An ICL carries the specific duty to attempt to minimise trauma to the child associated with the family law proceedings and, therefore, is not obliged to, and cannot be required to, disclose anything to the Court unless that disclosure is in the child’s best interests.

Who Pays for an ICL?

Although an ICL is usually funded by legal aid, they may also be funded privately by either or both parties.

Contact Us

Dealing with parenting matters can be an emotional and difficult process for all parties. We can help with:

resolving your parenting matter outside of court;
creating a parenting plan;
applying for consent orders;
applying for parenting orders;
defending against an application for parenting orders;
having your child’s voice heard in court; and/or
any other family law matter.

Get In Touch With Our Team

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References

Family Law Act 1975 s 61B.
Family Law Act 1975 s 64B.
Family Law Act 1975 s 61C.
Family Law Act 1975 s 61C.
Family Law Act 1975 s 61D.
Family Law Act 1975 s 61D.
Family Law Act 1975 s 64B(2).
Family Law Act 1975 s 61DA(1).