The law in relation to parental responsibility was changed by the Family Law Reform Act 1995 (Cth) ("FLRA"). This Act replaced Part VII of the Family Law Act 1975 (Cth) ("FLA") 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 FLA has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 ("FLASPRA"), 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 out strong messages, particularly in relation to shared parenting after separation.
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 FLA to include change of name and changes to "living arrangements that make it significantly more difficult for the child to spend time with the parent". Also, the court must consider whether each parent is likely to facilitate a "close relationship" between the child and the other parent. The court must also consider whether each parent has in the past fulfilled his or her responsibilities as a parent.
Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the court remains as what it ultimately regards as being in the best interests of the child. Joint and shared parenting are outcomes that are desirable, indeed preferable, but only where this is consistent with the best interests of the child.
The court is obliged to take prompt action in relation to allegations of child abuse or family violence.
It should be noted also 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 parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence.
Where a party alleges that a child has been abused or is at risk of abuse or family violence, the court must consider what interim or procedural orders (if any) should be made to obtain evidence about the allegations and to protect the child or any party to the proceedings. For further information see: Chapter 5*4 Family Violence.
Sections 69P–69U of the FLA set out the circumstances when parentage is presumed for the purpose of bringing family law proceedings and sections 69V–69ZD give the court power to order a "parentage testing procedure". Failure to take the test has no penalty but the court can draw inferences (s.69Y(2)). The report on the test is admissible as evidence (s.69ZC).
Parentage testing procedures must be carried out according to the Family Law Regulations 1984 (Cth) and must be undertaken by a laboratory that is accredited by the National Association of Testing Authorities, Australia.
The status quo regarding who the children live or spend time with often plays a very important part between the interim (in-between) decision 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 he or she has been residing.
It should not be assumed, however, that at the interim hearing the court will inevitably 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.
Because the court has to think about the child's future welfare in the parent's household, it may take into account an applicant's criminal actions, sexual behaviour, drunkenness, mental stability, moral beliefs or any other characteristic which could affect the way a child would be treated. The court considers who the child is living with at the time of the application, the proposed accommodation for the child and any other consideration that will be relevant to the happiness and wellbeing of the child.
The main point upon which the court will focus will be the effect of a parent's way of life on the child. If, for example, the applicant is living in another relationship, the court is likely to look closely at the nature of that relationship and at the relationship of the child to the person the applicant is living with. If a parent leaves the family home in order to live in another relationship, neglecting the children in the process, that behaviour would be considered relevant in determining the children's residence.
The expressed wishes of a child 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 he or she wishes 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 rare, and generally is considered less desirable than welfare reports or having representation for children (see: "Independent children's lawyer", following).
A child may have independent legal representation (s.68L). 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 by Victoria Legal Aid (VLA).
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. The child's wishes may not necessarily be deemed by the court to be the best interests, but the child's wishes, once expressed, must always be made known to the court.
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 FLA indicates that this adoption may extinguish the parental responsibility of the other parent (ss.61E & 60G). For more information, see: Chapter 5*5 Adoption.
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.
- 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:
- the relationship between both parents;
- the relationship between the parents and the children and any other relevant party such as a de facto spouse, grandparents and so on;
- the standard and quality of accommodation; and
- any other matter which the consultant considers relevant.
- Under section 55A(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. The Family Consultant in these cases is required to prepare a report detailing the arrangements made for the welfare of the child.
- When a report has been obtained in accordance with section 55A(2) or section 62G, then the court may:
- supply copies of the report to the parties, their legal practitioners or to any legal practitioner representing a child under section 68L of the FLA;
- receive the report in evidence; or
- permit oral examination of the person making the report.
When making a parenting order, the court may direct that the order be supervised by a court Family Consultant. In practice, unless some particular supervision is ordered, this simply 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.
A child cannot be taken overseas without the written consent of any person who has the benefit of a parenting order. It is also necessary to get the consent of anyone who is 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 passport of the child and of any other person concerned be delivered to the court. It may also order that a child be restrained from removal from Australia.
Proceedings related to children may be instituted in the Family Court of Australia, the Federal Magistrates Court or the state Magistrates' Court.
Many undefended parenting applications are heard by state Magistrates' Courts, where an earlier hearing date can often be obtained. Magistrates' Courts may also grant interim order for parenting orders.
If contested (challenged), an application for parenting orders must be transferred to the Family 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 Family Court despite the wishes of the parties. Before doing so, the Magistrates' Court may make such orders as it considers necessary, pending hearing in the Family Court.
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 (see: "Intervening parties", in Chapter 5*1 Divorce).
The Federal Magistrates Court was originally established as a separate court of summary jurisdiction to deal with a range of less complex federal matters previously dealt with in either the Family Court or Federal Court. It was intended to provide a quicker, cheaper option for litigants.
The areas of family law in which this court has jurisdiction are:
- applications for divorce;
- family law property disputes;
- spousal maintenance, including overseas maintenance;
- orders for parenting orders;
- all location and recovery orders regarding children, as well as warrant for the apprehension or detention of a child; and
- determination of parentage and recovery of child-bearing expenses.
The court has the same child support jurisdiction as the Family Court.
Proceedings may be transferred between the Federal Magistrates Court and the Family Court as is appropriate to the case, either on the application of a party or on the courts' own motion. Reasons for transfer between the courts generally come down to the complexity of the case and the estimated time the case is likely to take at the final hearing.
In practise the Federal Magistrates Court is now dealing with the overwhelming majority of all family law matters that are instigated, while the Family Court continues to deal with the more complex and lengthy proceedings.
An application must be made, and an affidavit in support is required. A marriage certificate, or copy, must be filed where the parties have been married. If the parties are not married, a birth certificate must be filed for each child who is the subject of proceedings. Proceedings are then filed and served, as described under "Service of documents" in Chapter 5*1 Divorce.
A person can go to the court and ask that a parental responsibility order be discharged, varied, suspended or revived.
A parenting order stops when a child attains 18 years of age, marries or enters into a de facto relationship, or is adopted.
When the parent having a residence order for a child dies, the other parent is entitled to residence only if the court so orders upon application by that parent. The surviving parent can apply to the court, as can any other person who has an interest in the welfare of the child.
Once a parenting order is made in favour of a person, the other party must comply with that order. The court may issue a warrant for the arrest of a person who contravene the order, and have them brought before the court to be dealt with. The court may also make a "recovery order", authorising a person 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.
The court may also order that information about the child's location be provided by any Commonwealth department (for example, Centrelink) or by any other person.
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PARENTAL RESPONSIBILITY FOR CHILDREN :: Last updated: Wed Jul 1st 2009