Parenting Matters

Since, 1 July 2006, when the Family Law Amendment (Shared Parental Responsibility) Act, came into effect, a legal presumption exists that parents have “shared parental responsibility” for the children of the marriage. Shared Parental Responsibility means that parents are to participate equally in decisions relating to the upbringing of the child. This presumption can only be rebutted by evidence establishing abuse or family violence.

In addition, where the presumption of shared parental responsibility is not rebutted, in an application for parenting orders the Court must consider making orders that the child spend equal time or significant and substantial time with each parent unless this would be contrary to the child’s best interests or not reasonably practicable. Significant and substantial time means that there are periods of time that fall on weekends, during the week and on holidays, where possible.

The Family Law Act sets out primary considerations and secondary considerations that the Court must consider in making a determination as to what is in the child’s best interests. The primary considerations include the benefit to the child of a meaningful relationship with both parents and the need to protect children from physical or psychological harm.

The additional considerations include:-

  1. The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding;

  2. The child’s relationship with each parent and other family members;

  3. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;

  4. The effect on the child of a change in circumstances, including separation from a parent or person with whom the child has been living;

  5. The logistical difficultly and expense of a child spending time with and communicating with a parent;

  6. The parent’s ability to provide for the child’s needs;

  7. The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

  8. The right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture;

  9. The attitude of each parent to the child and to the responsibilities of parenting;

  10. Any family violence involving the child or a member of the child’s family;

  11. Any family violence order that applies to the child or a member of the child’s; and

  12. Any other fact or circumstance that the court thinks is relevant.

In addition, a court must also take into consideration the extent to which each parent has or has not previously met their parental responsibilities, in particular:-

  1. Participated in decision-making about major long-term issues about the child; spent time with the child;

  2. Communicated with the child;

  3. Met their obligations to maintain the child, and

  4. Facilitated the other parent’s involvement in these aspects of the child’s life.