Parental Separation

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Parental Separation

When parents separate, one of the most important issues that they need to resolve are the parenting matters and ensuring that the children continue to have a relationship with both parents. The importance of this is highlighted in the Family Law Act 1975, which relates to the rights and interest of all children in Australia. When making arrangements for your children, you need to consider how the Family Law Act 1975 applies and how the Court approaches parenting disputes, regardless of whether your parenting matter goes to Court.

Best Interests of the Child

The Court approaches parenting matters by applying the presumption that the “best interests of the child” is the most important consideration and recognising that each parent has parental responsibility toward their child (which is generally shared equally, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abused the child).

During any parenting dispute, you will hear the phrase, “best interests of the child”, being used often, but what does that actually mean? Section 60CC of the Family Law Act 1975 sets out very clearly what a child’s best interests are, and they are broken down into primary and secondary considerations.

The primary consideration for the Court is the benefit to the child of having a meaningful relationship with both parents, subject to the need to protect a child from any harm (which includes psychological harm, or being subjected to or exposed to abuse, neglect of family violence). The Court places greater weight on the need to protect the child from any harm or family violence over the child having a meaningful relationship with both parents.

The Court will then have regard to the secondary considerations, such as, any views expressed by the child and any factors 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 parents and any other persons and the extent to which each of the parents takes, or fails to take, the opportunity to participate in making decisions, to spend time with or communicate with the child.

Equal Shared Parental Responsibility

Equal shared parental responsibility means both parents of a child under the age of 18 years old have a role in making decisions about major long term-issues that affect the child, including matters relating to education, religious or cultural upbringing, medical treatment, where a child lives and a child’s name. This however does not necessarily mean equal care time arrangements.

Unless orders are made by the Court, the presumption of equal shared parental responsibility applies. If the Court finds there is a presumption of equal shared parental responsibility, meaning there are no circumstances of family violence or child abuse, the Court must consider making an order that the children spend equal time with each parent.

An equal time arrangement is one that is reasonably practicable and in the best interests of the child. If the Court considers that an equal time arrangement is not reasonably practicable or in the best interest of the child, it will consider who the child will live with, how much time the child will spend with them, and communication with the other parent. Such time must be substantial and significant time, so long as it is reasonably practicable and in the best interests of the child.

Sole Parental Responsibility

The presumption of equal shared parental responsibility does not apply to decisions about short-term matters and everyday activities when the child is in the care of either parent. For example, decisions about what the child will wear or eat, and what time they go to bed, do not have to be made jointly with the other parent.

The presumption also does not apply if there are reasonable grounds to believe that one parent has abused, been violent against or used threatening behaviour toward the other parent, the child, or any other child of a family member in either parent’s family.

You can apply to the Court for an order for sole parental responsibility. This order will only be made when the presumption of equal shared parental responsibility is not in the best interests of the child. If the Court makes an order that one parent has sole parental responsibility, that does not necessarily mean that the other parent will not spend time with a child. It is also possible that a Court can make an order that one parent has sole responsibility for all, or part, of the major long-term decisions of a child.

For a Court to make a decision about this matter, the person applying for the order must provide evidence to satisfy the Court that equal shared parental responsibility is not in the best interests of the child. This evidence may include a police or medical report, psychology assessments, or other relevant witness statements. The Court may also consider evidence about the mental and physical health of either parent.

This is a very serious and complex area of law. If you wish to make an application for sole parental responsibility, you should first get legal advice. For specialist parenting advice from a family law lawyer, contact us on (07) 5522 5777.

Sole Parental Responsibility

Rights in Parenting Matters

Most often we get asked “what rights do I have to my child?” The answer is, the only rights recognised in parenting matters under the Family Law Act 1975 are the rights of the child. A parent does have the right to make major long-term decisions about a child, however a child’s rights will always come before parents’ rights and the court’s primary focus is to ensure that each child has a meaningful relationship with both parents.

Parents do however have duties and responsibilities, which include:

Protecting their child from any harm, including family violence or child abuse;
Providing safety, supervision and control;
Providing medical care where necessary;
Providing their child with food, clothing and a home to live in; and
Providing an education.

Resolving Parenting Disputes

Parents are encouraged to try and resolve parenting matters between themselves, if it is safe to do so, and ensure that the parenting arrangements are child focused. If parents are unable to resolve the matters between themselves, there are other options available to them, such as Family Dispute Resolution, which is compulsory before filing an application to the Federal Circuit Court. You can also engage the services of a Family Law Solicitor to assist you with your negotiations.

Parental Separation