Parenting Matters in Australia

Proceedings commenced by a parent in relation to who has care/responsibility for a child are referred to as parenting matters. The Court has the power to make Orders specifying who the children shall live with, spend time with, and further, who has parental responsibility.

Australia is a signatory to the United Nations Convention on the Rights of a Child which was ratified in 1989. In accordance with the UNCRC, the paramount consideration of the Court in parenting matters is the best interest of the children. 

What is parental responsibility?

In accordance with section 61B of the Family Law Act 1975, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each parent has parental responsibility, subject to Court Orders.

Decision making authority

A court can make Orders in respect of the allocation of parental responsibility, either solely to one parent, or equally to both parents.

where a parenting order requires joint decision-making about major long-term issues affecting a child, each person involved must consult with the others before making important decisions and must make a genuine effort to reach agreement. This means parents are expected to communicate, exchange relevant information, and honestly attempt to make decisions together about matters such as education, health, religion, or relocation. This aims to prevent either parent from making unilateral major decisions without first properly involving the other, unless the parenting order specifically allows otherwise.

A court can Order one parent to retain sole decision-making authority in respect of long term decisions in cases where one parent is deemed unfit to make important long term decisions, or in high conflict matters where the Court finds it unlikely that the parents will be able to consult one another amicably. 

Live With/Spend Time With

The allocation of parental responsibility is not necessarily the allocation of each parents time with the children. When the Court determines who the children live with and how much time they spend with each parent, the decision is made in accordance with their best interests and considered practically. 

For example, the Court could order for children to live with Parent 1, and spend time with parent 2, with both parents to have equal shared decision-making responsibility in respect of major long term decisions.

In determining what is in the best interests of the children with respect to who they live and who they spend time with the court will consider:

• Who the children have lived with in the past;
• The nature of the children’s relationship with each parent;
• Where each parent lives;
• Where the children go to school;
• Where the children’s extended family lives;
• The children’s cultural needs;
• Any other relevant circumstances.

Common parenting orders

While the majority of parenting orders include the order that the parents have equal shared parental responsibility, there is a range of orders it may make with respect to who the children live with and spend time with. Common parenting orders include:

• That the children live in a week about arrangement, spending one week with parent 1 and the next with parent 2.
• That the children live primarily with one parent but stay for certain periods with the other parent. For example, that the children live with the mother but spend every second weekend and half the school holidays with the father;
• That the children live with one parent and spend time regularly with the other parent (without staying overnight with the other parent).
• That the children live with one parent and have supervised contact with the other parent. Contact may be supervised by another family member, such as a grandparent, or in a contact centre run by the government or a private company.

A court may also make orders that the children spend regular time with other significant persons in their life – such as grandparents or aunts and uncles This is particularly likely to occur where there is a dispute between the parents as to whether such contact should occur or where such contact is important for cultural reasons.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.