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Parenting Matters in Australia

In Australia, family law disputes about who has care of and legal responsibility for children are known as parenting matters. In parenting matters, the court makes parenting orders setting out who the children live with and who has parental responsibility for the children.

When making parenting arrangements, Australian family law requires the best interests of the children to be the paramount consideration. These matters are not about the parents’ rights to spend time with the children but rather the children’s right to spend time with parents if it is in their best interests.

What is parental responsibility?

Under Australian law, parental responsibility is what a lot of people think of as ‘custody.’ The person or persons who have parental responsibility is legally responsible for the children and making major decisions about their lives – such as what school they go to, what religion they are brought up with and any major medical interventions they receive.

Equal Shared Parental Responsibility

Under the Family Law Act, there is a rebuttable presumption that it is in the best interests of the child that the parents should have equal shared parental responsibility. This presumption is contained in section 61DA. However, this presumption does not apply if a parent has engaged in abuse of the child or of another child in the family or in family violence. The presumption can be rebutted with evidence that equal shared parental responsibility is not in the best interests of the child.

Live With/Spend Time With

When the courts are dealing with a parenting matter, they must also decide who the child should live with and who they should spend time with. The presumption of equal shared parental responsibility does not mean that it is presumed that the children should spend equal time with each parent. Who the children live with and how much time they spend with each parent will be determined according to the circumstances of the case and what the evidence suggests is in the best interests of the children.

In determining what is in the best interests of the children with respect to who they live and who they spend time with 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 for half their time with one parent and half their time with the other;
  • 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.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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