Following the amendments introduced by the Family Law Reform Act 1995 (Cth), the concepts of guardianship, custody and access in the Family Law Act 1975 (Cth) (FLA) were replaced by the terms: parental responsibility, and parenting orders which deal with residence (“live with” and “spend time with” orders), contact, child maintenance and specific issues orders.

One of the central objectives under the current Family Law Act 1975 (Cth) is that parties attempt to resolve their disputes about either children or their property as much as possible themselves through the use of mediation and family dispute conferences. Avoiding litigation is encouraged, not only to avoid the cost of legal fees but also to avoid the very long and stressful process of getting a final decision.

“Best interests of the child” principles

When making any order related to a child, the court must regard “the best interests of the child” as the paramount consideration. In making a parenting order, the court will decide the significant aspects that might affect a child’s usual living arrangements such as:

• • the person/s with whom the child shall live;
• • the time or communication the child will have with other persons;
• • the allocation of parental responsibility;
• • the maintenance of the child; or
• • any aspect of the care, welfare or development of the child. See s 60CA of the Family Law Act 1975 (Cth)

The best interests of the child are also relevant to proceedings relating to a proposed variation to a parenting plan, leave to commence adoption proceedings or varying parenting orders in family violence proceedings.

Where the court’s jurisdiction is properly invoked in relation to a family law matter, the child ’s best interests remain the paramount consideration. However that may not be the case where orders are sought relating to procedural issues such as the “inappropriate forum” test or a stay order of existing proceedings. The court retains its discretion to embark on a full hearing where the child is living in Australia at the time of the proceedings and whether an overseas court is likely to properly inquire into the child’s welfare and other matters it may determine as being relevant. See EJK v TSL 35 Fam LR 559 where a Korean mother sought ex parte interim parenting orders which were disputed by the father who wanted the children returned to Korea.

Practice Tip: The legislative pathway described below with respect to care arrangements for children under the Family Law Act 1975 (Cth) has been the subject of review by the Australian Law Reform Commission. The Commission has published its final report and made significant changes to existing legislation but as yet, no legislative changes have been implemented.

Determining what is in the child’s best interests

Before making any parenting orders, the court is obliged to take into account two primary considerations:

• • the benefit to the child having a meaningful relationships with both parents; and
• • protecting the child from being subject to either physical or psychological harm, abuse or neglect with greater weight being given to this latter consideration. See s 60CC(2).

In addition to this paramount consideration, the court shall also consider additional matters such as:

• • the nature of the child’s relationship with their parents or other persons;
• • the child’s wishes (depending on their age and maturity);
• • each parent’s capacity and demonstrated attitude towards the responsibilities of parenthood and the welfare and education of the child;
• • the practical difficulty of the child spending time with the parent; and
• • the child’s right to maintain a connection with their indigenous culture and to have the support and opportunity to explore the full extent of that culture.

See s 60CC(3) of the Family Law Act 1975 (Cth).

The nature of the child’s best interests is also relevant in those instances where the court is considering granting leave for adoption proceedings, varying an existing parenting plan, or varying existing orders where the welfare of the child may be at risk.

Where a child lives with a non-parent, such as a grandparent, is under consideration this factor would fall under the “additional matter” heading. The court would not necessarily give this factor a lesser weight than the child’s relationship with their parent. However in Mankiewicz v Swallow [2016] FamCAFC 153 an appeal by great grandparents was dismissed because the court found they lacked standing to commence proceedings under s 65C unless they could demonstrate they were a person “concerned with the care, welfare or development of the child”. The Act has since been amended in light of this decision to specifically include grandparents — see s 65C(ba).

When a court makes a parenting order relating to the parents having either equal shared parental responsibility or the child spending substantial and significant time with either parent, the court is obliged to have regard to the best interests of the child. See s 65DAA. In Hamish & Brighton [2014] FamCAFC 242 the court considered the best interests of the children in relation to a proposed relocation by the mother to another State which would have varied the existing orders which gave equal parental responsibility and substantial time to the father.

Views of the child

The court may inform itself in a number of ways about the expressed views of the child, either through a report or through the appointment of an Independent Children’s Lawyer to represent the child. See s 68L. In Bondelmonte and Bondelmonte [2017] HCA 8 the views of two brothers aged 17 and 15 years was expressed through the evidence of their father and the Independent Children’s Lawyer in that they wanted to remain living with their father in New York. The court rejected their views and ordered the younger brother to be returned to Australia (not having jurisdiction over the older brother) but that he could continue to live with his father on an interim basis. The primary judge in this case was of the opinion that the father had greatly influenced the boys’ desire to return to Australia.

Requirement to notify the Court of any family violence order

Following 2011 amendments to Pt VII Children, a party to a proceeding is required to advise the court if any child or member of the child’s family is the subject of a family violence order. Consistent with the court’s obligation to make the child’s best interests its paramount consideration, any order it makes should be:

• • consistent with any family violence order; and
• • should not expose a person to an unacceptable risk of family violence. See s 60CG.

The requirement to inform the court includes situations where under child welfare laws, a person is under care arrangements or the subject of an inquiry or investigation.

As a consequence of this general obligation, an adviser, as defined by s 60D is required to notify the court.

Parental responsibility

Each of the parents of a child who has not turned 18 years has “parental responsibility” for the child: s 61C, Family Law Act 1975 (Cth). Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”: s 61B, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted.

There is a presumption, when a parenting order is being made in relation to a child, that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility: s 61DA, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted. It is also possible for one parent to have sole parental responsibility or for a person other than a parent of the child to have parental responsibility (sole or shared) for that child.

When parental responsibility is shared between two or more persons, there is a legal requirement for those persons to jointly make decisions that are major long term decisions for that child. This means that each person has to consult with the other and make a genuine effort to come to a joint decision about that issue. It does not actually require agreement for a decision to be made jointly, although depending what the issue is about logistically it may not be possible to implement a decision without the written consent of both or all persons with parental responsibility (eg, medical decisions, changing a child’s name or to enrol in a private school). In these cases a court order may be required where the parties do not agree. There is no need for consultation on decisions which are not major long term decisions, ie the day to day decisions about what a child eats, discipline, sleeping times etc. See ss 65DAC and 65DAE FLA.

Practice Tip: For a case which looks at how to approach the task of drafting orders for parental responsibility see Pavli v Beffa [2013] FamCA 144. For a case where the court determined that a parent was to have no parental responsibility see Modlin & Anstead [2013] FamCA 955.

Major long term issues is defined in s 4 of the Family Law Act to mean 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:

• • the child's education (both current and future);
• • the child's religious and cultural upbringing;
• • the child's health;
• • the child's name; and
• • changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

See B and B and Goode v Goode (2006) 36 Fam LR 422.

See Parental responsibility.

Parenting orders

Part VII of the Family Law Act 1975 (Cth) provides the substantive framework for parenting orders; that is, applications and orders concerning care arrangements for children following the breakdown of the parents’ relationship. Part VII is intended to be a comprehensive set of principles to be followed in all cases where parenting orders are sought pursuant to the Family Law Act 1975 (Cth). The object of Part VII is to ensure that the best interests of children are met.

Part VII is divided into a number of divisions, each dealing with separate aspects of the law to be applied. Care must be had to refer to the relevant division when making an application to the court to ensure that all relevant aspects are considered.

See Parenting orders.

Shared and substantial care

If the presumption of equal shared parental responsibility applies, (it can be rebutted where there is family violence or high levels of conflict between the parties) the court must firstly consider that child spending equal time with each parent and, if equal time is not in the child's best interest, then consider whether it is reasonably practicable for the child to spend equal time with both parties and, if not, then the court must consider the option of the child spending "substantial and significant time" with each parent.

See Shared and substantial care.

"Live with” and “spend time with” orders

Primarily, parenting orders are concerned with the time that the child “lives with” or “spends time with” each parent. This is usually the most contentious issue in applications for parenting orders. Usually following the making of residence orders, the court will also determine the allocation of “parental responsibility”, While the primary residential parent is always likely to have parental responsibility, the “spend time” with parent may also have shared responsibility.

There is wide scope of the living arrangements that may be made for the child. If the parents are able to cooperate and live in relatively close proximity, the child may have a “week about” arrangement where they effectively live in both homes. More frequently however, the child will mainly live with one parent and spend time with the other parent on alternate weekends. Drafting such orders requires consideration of school holidays and festival days such as Christmas and Easter taking into account fairness to both parties. Detailed orders set out the rules for the parties and reduce conflict over extended periods.

See “Live with” and “spend time with” orders.

Family violence

Family violence is recognised as one of the factors that can have a significant adverse impact on the welfare and development of a child. For this reason, the Family Law Act 1975 (Cth) repeatedly makes reference to the consequences of violence where it is alleged.

Family violence means actual or threatened conduct which causes a reasonable fear of a person’s well-being or safety: s 4(1), Family Law Act 1975 (Cth). It does not only mean violence directed towards the child but includes the child witnessing family violence or the aftermath thereof (eg a party upset following violence, damage to property etc) and any actual or threatened conduct between parties or from one party to another person. For this reason, the existence of family violence between spouses is seen as having, or potentially having, an adverse effect on the child’s welfare and development and/or the parenting capacity of the victim of that violence.

In all applications dealing with children, there is a need to consider whether family violence is a factor and what the short and long term legal and psychological effects of that violence might be on the child who is the subject of the application and the adult victim carer of the child. Family violence will affect individual children differently and evidence should be lead that is specific to that child as well as expert evidence about the neurological, psychological and behavioural impact on family violence on the development of the child. The Court is also required under the Family Law Act 1975 (Cth) (and in WA, where applicable, the Family Court Act 1997 (WA), to take into account any family violence protection orders which may exist (eg, for the protection of the parent and/or the children) and ensure that any family court orders are consistent with such orders to the extent possible. Where there is inconsistency, the Family Court orders will override the (State Court) family violence orders but only to the extent of the inconsistency.

Practice Tip: There is a lot of useful guidance material for practitioners about family violence and its effects particularly on children and in the context of family law in the National Family Violence Benchbook which was developed by the Australian Institute of Judicial Administration.

Practice Tip: Practitioners should take active steps to ascertain whether any family violence orders exist, the details of the order made (if not a copy of the actual order) and, where possible, the evidence on which the State family violence order was made, is put into evidence in the Family Court proceedings. In some States (eg, Western Australia) the proceedings are recorded so parties can obtain a copy of the transcript for the family violence order ex parte proceedings and tender the transcript into evidence in the Family Court proceedings.

See Allegations of family violence or child abuse.