Last updated 8 August 2016
If parents cannot agree about the parenting arrangements for their children after separation, pre-action procedures must be complied with prior to filing an application for parenting orders with the court. All parties (unless the matter falls within one of the exceptions) are now required to attend family dispute resolution before bringing any applications for parenting orders (see Family dispute resolution).
No party is to use the pre-action procedures for an improper purpose, and correspondence or discussions between the parties should not include material that may cause the other party to adopt an entrenched, polarised or hostile position.
The Family Law Act distinguishes between major long-term issues and those matters that fall within the day-to-day needs of the child. Parties with parental responsibility are not required to consult with each other in relation to decisions on issues that are day-to-day issues (s 65DAE Family Law Act).
Major long-term issues
Major long-term issues about which parents must consult and cooperate are defined in s 4(1) of the Family Law Act and include the child’s:
- religious and cultural upbringing
- living arrangements where those changes make it significantly more difficult for the child to spend time with a parent.
The child’s best interests
The Family Law Act provides that when deciding to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration (the paramountcy principle) (s 60CA Family Law Act). The considerations by which a court determines what is in a child’s best interests are divided into primary and additional considerations (s 60CC Family Law Act).
The primary considerations are the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence. However, the court is required to give greater weight to the need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence than the need to have a meaningful relationship with both parents.
The additional considerations are:
- any views expressed by the child and any factors (e.g. the child’s maturity level or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
- the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
- the extent to which each of the child’s parents has fulfilled, or failed to fulfill, the parent’s obligations to maintain the child
- the likely effect of any change in the child’s circumstances including the likely effect of any separation from either of their parents, or any other child or person (including any grandparent or other relative of the child with whom they have been living)
- the practical difficulty and expense of a child spending time and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
- the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
- the maturity, sex, lifestyle and background (including culture and traditions) of the child and either of the child’s parents, and any other characteristic of the child the court thinks are relevant
- if the child is an Aboriginal or Torres Strait Islander child:
- the child’s right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people that share that culture)
- the likely impact any proposed parenting order will have on that right
- the provisions of s 60CC(6) of the Family Law Act
- the attitude towards the child and to the responsibilities of parenthood demonstrated by the child’s parents
- any family violence involving the child or a member of the child’s family
- if a family violence order applies or has applied to the child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order and any findings made by the court in, or in proceedings for, the order
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
- any other fact or circumstance that the court thinks is relevant (s 60CC(3) Family Law Act).
Presumption of equal and shared responsibility
Section 61DA of the Family Law Act provides that when making a parenting order, the court must presume that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. Importantly, this presumption relates solely to parental responsibility and not the amount of time a child spends with each of the parents.
The presumption of equal shared parental responsibility will not apply (ss 61DA(2)–61DA(4) Family Law Act):
- in cases where 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 abuse of the child or another child who, at the time, was a member of the parent’s family or that other person’s family
- in interim hearings where the courts consider it would not be appropriate for the presumption to be applied.
The presumption can also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child if the parents have equal shared parental responsibility.
The concepts of equal, substantial and significant time and reasonable practicality
Section 65DAA of the Family Law Act clearly states that if a parenting order provides or is to provide that the parents have equal shared parental responsibility, the court must consider the possibility of the child spending equal time, or substantial and significant time with each of their parents, provided certain requirements are met. This provision has been the subject of consideration by the High Court of Australia (see the case MRR v GR  HCA 4).
In relation to equal time (s 65DAA(1) Family Law Act), the court must consider whether the child spending equal time with each parent would be in the best interests of the child and reasonably practicable. If both points apply, the court must consider making an order to provide (or include a provision in the order) for the child to spend equal time with each parent.
Substantial and significant time
If the court does not make an order for equal time, then the court must consider whether the child spending substantial and significant time with each parent would be in the best interests of the child and reasonably practicable (s 65DAA(2) Family Law Act). If both points apply, the court must consider making an order to provide (or include a provision in the order) for the child to spend substantial and significant time with each parent.
Pursuant to s 65DAA(3) of the Family Law Act, a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent:
- includes days that fall on weekends and holidays, and days that do not fall on weekends or holidays
- allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child
- allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(3) of the Family Law Act does not limit the other matters to which a court can have regard in determining whether the time a child spends with the parent would be substantial and significant.
In determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time with each of the child’s parents pursuant to s 65DAA(5) of the Family Law Act, the court must have regard to:
- how far apart the parents live from each other
- the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents
- the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement at that time
- the impact that an arrangement of that kind would have on the child
- such other matters as the court considers relevant.
Some of the factors in s 60CC(3) of the Family Law Act may also be relevant, for example the attitude of the parents toward the child and the responsibilities of parenthood.