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  • Writer's pictureToby Nelson

Parental Responsibility and the Best Interests of the Child

In parenting disputes, the Family Law Act (‘the Act’) refers to two different matters which fall within the scope of what was previously known as ‘custody’:

  1. Parental Responsibility; and

  2. Who the child lives with or spends time with.

In light of this new terminology, it is crucial to understand the meaning of Parental Responsibility, and the types of Parental Responsibility that may be awarded. It is also important to understand how the court goes about making these decisions.

What is Parental Responsibility?

Parental responsibility refers to the powers, duties, responsibilities and authority that parents have in relation to their children. These include long-term decisions (such as health, education and religion) as well as day-to-day decisions (such as what the child eats and wears, or what activities they participate in).

Until a Court makes an Order to the contrary, parents are considered to have ‘parental responsibility’ for their children. This applies regardless of whether or not the parents are separated. In these circumstances, parents need to cooperate with each other and jointly make long-term decisions regarding their child, but all day-to-day decisions remain the responsibility of the parent caring for the child at that time.

The Court also has the power to grant Parental Responsibility to people besides the child’s biological parents, including:

  • Grandparents or other relatives of the child

  • An adoptive, de-facto or ‘step’ parent of the child

  • A person who may live with the child

When parenting Orders are made by a court, they usually include an order for ‘Equal Shared Parental Responsibility’ or ‘Sole Parental Responsibility’.

Equal Shared Parental Responsibility versus Sole Parental Responsibility

Equal Shared Parental Responsibility refers to the idea that both parents (even if separated) share the responsibility for making decisions about major long-term issues concerning their child. Although the child may live with one parent, the other parent in these circumstances still holds identical duties and responsibilities.

As a starting point, the court generally presumes that an Order of Equal Shared Parental Responsibility is appropriate. However, this is not always the case. Instead, an Order of Sole Parental Responsibility in favour of one parent may be awarded in certain situations – such as where the child is at risk of being exposed to or experiencing extreme Family Violence.

The Court may also award one parent Sole Parental Responsibility for certain matters only, such as education or religion. This means that the other parent has no ability to make decisions relating to that matter. Alternatively, Sole Parental Responsibility can be granted to one parent for all major long-term decisions. However, this rarely occurs.

Equal Shared Parental Responsibility does not mean ‘equal time’

The Family Law Act makes it clear that an Order of Equal Shared Parental Responsibility does not automatically mean that a child will spend equal time with each parent. However, the Court must consider awarding an equal time arrangement in these circumstances if such an Order would be in the best interest of the child and is reasonably practicable.

If equal time is not awarded, the court must consider whether the child should spend substantial and significant time with each parent. Substantial and significant time is defined in the Act to include weekend/holiday time and special occasions/events, as well as time that does not fall on weekends or holidays. It also includes involvement in the child’s daily routine.

Ultimately, when the Court is considering a particular parenting order – including whether to grant Equal Shared Parental Responsibility or determining time arrangements – paramount consideration must be given to the best interests of the child. It is this principle that therefore guides the decision-making of the Court.

Best Interests of the Child

Section 60CC of the Family Law Act sets out the considerations used by the Court to determine what is in the best interest of the child. These can be divided into two different types – ‘primary’ considerations and ‘additional’ considerations.

Primary Considerations

There are two primary considerations under Section 60CC:

  1. The benefit to the child of having a worthwhile and meaningful relationship with both of their parents

  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This section also makes it clear that the Court is to give greater weight to the need to protect the child from harm, abuse or violence. This consideration therefore outweighs the need to ensure that the child have a significant relationship with both parents.

Additional Considerations

The additional considerations under the Act include:

  • The child’s views (taking into account their maturity or level of understanding)

  • The nature of the child’s relationship with their parents and other people (such as grandparents and other relatives)

  • Whether each parent has taken the opportunity to participate in the child’s life

  • Whether each parent has fulfilled their child maintenance obligations (if any)

  • The likely effect of any change in the child’s circumstances (including being separated from a parent or other person with whom they have been living)

  • Any expenses or difficulties arising from a child spending time with / communicating with a parent

  • The ability of each parent (or of any other relevant person) to provide for the child’s needs

  • Any characteristics of a child or parent that the court thinks are important (including their maturity, sex, lifestyle and background)

  • For an Aboriginal or Torres Strait Islander child - whether any proposed order might impact on their rights to know and enjoy their culture

  • Each parent’s attitude to the child and their parental responsibilities

  • Any domestic violence involving the child or a member of the child’s family

  • Any relevant inferences that may be drawn from the nature and circumstances of a family violence order

  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings; and

  • Any other fact or circumstance that the court think is relevant

Ultimately, it is the unique factors and circumstances of each case that will determine which of these above factors will be most significant. Together, consideration of these factors will enable the Court to ascertain the type of arrangement that is in the best interest of the child.

Should you wish to discuss parenting matters with Monica Clark, please do not hesitate to contact Clark Family Lawyers on 9988 2387 for a free initial consultation.

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