Family Law Regarding Parenting Matters
Australia’s ratification of the United Nations convention on the Rights of the Child 1989 ushered in sweeping changes to the Family Law Act. These changes are reflected in the Family Law Reform Act 1995. The Family Law Reform Act introduced the concept of “parental responsibility”. Parental responsibility displaced the notion that parents have rights in relation to their children. To that end, “parental responsibility” is defined in section 61B of the Family Law Act 1975 as follows: “all the duties, powers, responsibilities and authorities which, by law, parents have in relation to their children.”
A presumption that parents have equal shared parental responsibility will ordinarily apply in the context of a parenting dispute. The presumption will not apply if there are reasonable grounds to believe the following: namely, that a parent of a child, or a person living with a parent of the child, has either:
• Abused the child or a child of the family or
• Committed an act of family violence.
Additionally, the presumption may be rebutted where it is inconsistent with the best interests of the child.
If an order for equal shared parental responsibility is in place, then the parties are bound by the following: namely, an obligation to genuinely attempt to arrive at jointly-made decisions in relation to all major long-term decisions concerning the child.
“Major long-term decisions” is defined in section 4 of the Act as follows:
“…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:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves a parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
In a large number of cases, parents are unable to agree on major long-term issues affecting their child. If you find yourself in this situation, we strongly recommend that you contact our office to arrange an initial consultation.
The 1995 amendments also introduced the notion of the “best interests of the child”. Prior to these amendments, the Act specified that the “welfare of the child” is the paramount consideration in relation to parenting matters. Despite their apparent difference, both notions refer to the same principle – i.e., the paramountcy principle.
The paramountcy principle is enshrined in section 60CA of the Family Law Act. It requires courts exercising jurisdiction under the Act to regard the best interests of the child as the paramount consideration when making a parenting order. Accordingly, it is well within the court’s power to make an order other than those sought by the parties. This may also occur in situations where the parties have agreed upon the orders to be made.
The best interests of the child are determined by reference to the “primary” and “secondary” considerations set out in the Act. The primary considerations refer to:
• the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are, however, situations where the primary considerations conflict with each other. This can occur where on parent alleges that the other parent has engaged in either family violence or child abuse. The parent, against whom the allegations are made, will ordinarily deny the allegations. They would most likely rely upon the benefit of the child having a meaningful relationship with both parents in support of their case. In these circumstances, the court must give priority to the need to protect the child from abuse and harm.
The secondary considerations are comprised of an additional 14 factors. While the primary considerations are pre-eminent considerations in relation to determining the child’s best interests, there is nothing in the Act to suggest the following: namely, that a secondary consideration cannot outweigh a primary consideration under the appropriate circumstances.
Not sure about how the court might assess your child’s best interests in relation to a parenting dispute? We can help. Contact our office today to book an appointment.