Parental responsibility for children

• Key legislation

  Key terminology in relation to parental responsibility is contained in Part VII of the Family Law Act 1975 (Cth) (‘FL Act’). Some of these terms include ‘parental responsibility’, ‘parenting order’, ‘live with’ and ‘spend time with’.

  The law and commentary in this chapter reflects the most recent amendments to the Family Law Reform Act 1995 (Cth), the Family Law Amendment (Information Sharing) Act 2023 (Cth).

• Parental responsibility

  Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to the child. 

  Until 2024, there was a presumption that ‘equal shared parental responsibility’ was in the best interests of children. An order made for equal shared parental responsibility imposed an obligation on the court to consider ordering ‘equal time’ or ‘substantial and significant time’. This presumption no longer operates, and the situation is now assessed on a case-by-case basis.

  The family law courts encourage parents to cooperate post-separation in making important decisions about their child’s future. Where an order is made for joint decision-making between parents, it imposes on parents an obligation to consult on ‘major long-term issues’. Major long-term issues 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.

  In determining the child’s best interests, the court will consider a number of factors including:

  • what arrangements promote the safety of the child and each person who has care of the child;

  • any views expressed by the child;

  • the developmental, psychological, emotional and cultural needs of the child;

  • the capacity of each person who has or is proposed to have parental responsibility;

  • the benefit to the child of being able to have a relationship with the child’s parents; and

  • anything else that is relevant to the particular circumstances 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.

  The FL Act 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.

  A litigant is prevented from 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 and the court has 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. 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 child lives or spends time with often plays a very important part between the interim decision (pending the final hearing) and the final decision. Maintaining the status quo 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, and possibly the time spent by the child with each parent, so long as this can be regarded as being in their best interests.

• Is conduct relevant?

  In considering the child’s future welfare in the parent’s household, the court 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. For example, if 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. There is no specific age at which a child may decide with which parent they wish to live. In considering the wishes of the child, the court will consider the information contained in the family report and the views of the independent children’s lawyer (ICL).

• Independent children’s lawyer

  A child may have independent legal representation, known as an ICL. An ICL can be obtained by a court order made on the application of any person or organisation concerned with the welfare of the child or on the motion of the court itself. 

  For proceedings brought in Victoria, the court may request that independent representation be arranged and funded by Victoria Legal Aid (VLA).

  The ICL 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 evidence before the court 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 determination. The court may ultimately deem the child’s wishes as not representing the child’s best interests. However, once the child’s wishes are expressed, they must always be made known to the court.

• Adoptions

  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. 

  Under the FL Act, the adoption of a child will end the parental responsibility of the other parent except in limited circumstances.

• Reports by family consultants

  The court may, at its own suggestion or by application of either or both of the parties, order that a report be prepared by a family consultant. The family consultant may be a private practitioner (known as a ‘regulation 7 family consultant’) or employed by the court (known as a ‘court child expert’ – see www.fcfcoa.gov.au/fl/pubs/family-consultants for more information). The report contains the family consultant’s assessment of various matters and is presented to both parties and the court.

  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:

  a.the relationship between both parents;
  
  b. the relationship between the parents and the children and any other relevant party such as a de facto spouse and grandparents;
  
  c. the accommodation standard and quality; and
  
  d. 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 child’s welfare in divorce proceedings are proper. 

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

  a. supply copies of the report to the parties, their legal practitioners or to any legal practitioner representing a child under the FL Act; 
  
  b. receive the report in evidence; or 
  
  c. 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 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?

• Federal Circuit and Family Court of Australia

  The Family Court of Australia and the Federal Circuit Court have merged and become the Federal Circuit and Family Court of Australia (FCFCOA). This is the main court that deals with family law matters in Australia. The former Federal Circuit Court is now known as Division 2 of the FCFCOA and the former Family Court is now known as Division 1 of the FCFCOA. 

• Magistrates’ Court

  The Magistrates’ Court may grant interim orders for parenting orders. If challenged, an application for parenting orders must be transferred to the FCFCOA 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 FCFCOA 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.

Parenting orders

• To obtain orders

  A person must file and serve the following:

  • application for parenting orders; 

  • affidavit in support;

  • Notice of child abuse, family violence or risk; and

  • Genuine Steps Certificate (Family law).

  These documents can be found on the FCFCOA website. Proceedings are then filed and served, preferably by a process server. 

• Variation of parenting 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 on residence orders

  If a parent who has 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, 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 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’ which authorises the police to recover a child and if necessary, can do so by force, stop and search any vehicle, vessel or aircraft and 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 such as Services Australia (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.

Parental responsibility for children

Chapter: 4.2: Parental responsibilities and child support

Contributor: Kamalini Jayasena, Deputy Managing Lawyer, Child Support Legal Service, Victoria Legal Aid, and Simon MacDonald, Professional Support Lawyer, Victoria Legal Aid

Current as of: 1 September 2024

Law Handbook Page: 234

Next Section: Child and spousal maintenance