Parental Responsibility and Best Interests Explained

The passing of the Family Law Amendment Act 2023 has codified considerable changes to the concept of parental responsibility. Parental responsibility has been a central concept in family law matters for some time. It is the responsibility parents have in relation to major long-term decisions about the welfare and development of their child/ren, for example where they live, the school they attend, medical decisions, their name, and religious and/or cultural upbringings.

In 2006, changes to the Family Law legislation saw the introduction of the concept of equal shared parental responsibility, and provided that unless there were reasonable grounds to believe that a parent of the child has engaged in family violence that it would not be in the best interests of the child, that a presumption of equal shared parental responsibility applied. The Australian Law Reform Commission found in its 2019 report that the presumption that separated parents have equal shared parental responsibility for their child/ren was too frequently misinterpreted as a presumption of an equal shared care arrangement. The occurrences of misinterpretation of the law is said to have created a risk of harm to children.

The Family Law Amendment Act 2023 removes this presumption such that each parenting case before the Court will be evaluated on the matter’s specific merits, primarily focusing on the child/ren’s best interests. The Amended Act simplifies the objects of Part VII of the Family Law Act 1975 (Cth) as follows:

1.       To ensure that the best interests of the child are met, including by ensuring their safety; and

2.       To give effect to the Convention on the Rights of the Child.

The Amended Act simplifies the section 60CC factors  - those factors that the Court considers to decide what parenting arrangements will be in the best interests of the child – from the previous and hierarchical primary and secondary factors, to the-now six factors of general considerations and two further considerations if the child is Aboriginal or Torres Strait Islander. These six factors of general consideration are:

1)      What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

a)       the child;

b)      and each person who has care of the child (whether or not a person has parental responsibility of the child); 

2)      Any views expressed by the child;

3)      The developmental, psychological, emotional and cultural needs of the child;

4)      The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5)      The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

6)      Anything else that is relevant to the circumstances of the child.

These simplified and streamlined factors are intended to provide the Court with wide discretion to make decisions which posit the safety of children at the forefront of any arrangement. Parents at all stages of the separation process will need to consider these changes. An understanding of who is able to exercise parental responsibility in relation to what issues, and how and when joint decisions are to be made in relation to children, is an important yardstick to achieving successful parenting outcomes.

The practical impacts of these changes are yet to be seen, and our team of family law experts at Robinson + McGuinness will be closely following the development of jurisprudence in relation to parental responsibility from decisions in both Division 1 and 2 of the Federal Circuit and Family Court of Australia. If you need clarification regarding these latest amendments to the Family Law Act 1975 (Cth) or you would like advice on how they may impact your situation, please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Lauran Clifton

Parental Responsibility Explained

‘Parental responsibility’ refers to the duties, powers and responsibilities that a parent has in relation to a child.  This becomes an important consideration as you navigate the journey of co-parenting after separation.

Parental responsibility determines who makes long-term decisions about a child, such as what school a child attends, where a child lives and whether a child practices a religion. Section 65DAE of the Family Law Act 1975 (Cth) provides that parents are not required to consult on day-to-day issues (or issues that are not major long-term issues) – for example, what a child wears or what type of food a child takes in their lunchbox.

In the absence of a Court Order determining parental responsibility, there is a presumption that both parents have ‘equal shared parental responsibility’ (also referred to as ‘ESPR’).  ESPR requires that parents consult with each other about any long-term decision to be made, and make a genuine effort to come to that decision jointly.

This presumption is set out in section 61DA of the Family Law Act.  The presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of a child has been abusive towards that child (or another child in the family), or if they have engaged in family violence, including towards the other parent.

If there is enough evidence to satisfy a Court that an order for ESPR is not appropriate in the circumstances, the Court may make an order for ‘sole parental responsibility’.  A Court may consider that an order for sole parental responsibility is appropriate if the parents are unable to make decisions jointly, or if the communication between the parents would make an order for ESPR untenable.

On a final basis the Court must disregard any orders made on an interim basis about the allocation of parental responsibility. This means if your matter is in Court and an order has been made for ESPR on an interim basis, the Court may ultimately decide that ESPR is not appropriate on a final basis.

It is also important to understand that parental responsibility does not determine what time a child spends with each parent. An order for ESPR does not automatically mean that a child will spend equal time with each parent. Courts will consider what is in a child’s best interests and whether an equal time arrangement would be reasonably practicable, among other things.

If you are unable to reach a joint decision about a major long-term issue regarding your child, or if you are concerned about sharing parental responsibility with your former spouse, you should contact a family lawyer to better understand your rights and obligations. If you are ready to book an initial appointment with a specialist family lawyer in Canberra, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Anika Buckley

Co-parenting after Separation: Medical Decisions

When you and your partner separate, there can be a big shift in how you care for the children in both the day-to-day routine and in the long-term.  In some families, one parent can be predominantly responsible for arranging and taking the children to appointments, such as dentist check-ups and routine GP visits.  In other families, parents share the responsibility for arranging and taking the children to these appointments.

When presented with a medical issue, it can be difficult when you and your former spouse do not agree about the proposed treatment or care for your child. Where no Court Orders exist or setting out who has parental responsibility, there is a presumption that you and your former spouse have ‘equal shared parental responsibility’ (“ESPR”) for the children. This means that you must consult with each other and endeavour to reach agreement about any long-term decisions, such as schooling, religious practices or medical treatment.

The presumption of ESPR may not apply if the Court has reasonable grounds to believe that a parent has engaged in the abuse of a child or engaged in family violence.  The presumption can also be rebutted if the Court deems it would not be in the child’s best interests for parental responsibility to be shared between parents.

When treating a child, medical professionals generally require the consent of a parent (or someone who has parental responsibility for that child). In some instances, where a medical professional considers that a child understands the nature and consequences of a proposed treatment, that child can proceed with the proposed treatment or procedure. The medical professional would take into account matters including the child’s age and maturity, their ability to understand the medical advice provided, and the implications of undergoing the proposed treatment.

It is important to note that in some instances, a child is not able to make their own decision about treatment and a Court Order could override their decision.

In the case of an emergency, you are able to provide consent for your child’s treatment if you present to an emergency department with that child.  If a medical emergency occurs whilst a child is in your care, you should still endeavour to consult the other parent (to the extent that you can) and keep them informed about what is happening and the next steps.

Where there is no medical emergency, decisions about long-term medical care should be made jointly where there is a presumption of ESPR (or a Parenting Plan or Court Order which states you have ESPR).  Where you cannot agree about proposed treatment and there are no circumstances of urgency, you should consider attending dispute resolution (or if that is unsuccessful, you may need to consider applying to the Court).

If you are concerned about a proposed treatment for your child or if you are worried that your former spouse is not following reasonable medical advice or recommendations, you should seek legal advice to understand your rights.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley 

Exploring the Proposed Amendments to the Family Law Act 1975

In early 2023, following reviews by the Australian Law Reform Commission and the Parliamentary Joint Select Committee into Australia’s family law system, the Attorney-General’s Department published an exposure draft of the Family Law Amendment Bill 2023 for public comment. The primary focus of the proposed amendments is ensuring that the family law system prioritises and recognises the best interests of the child.

 The amendment Bill contains a number of proposed changes. Some of the most significant are:

The Removal of the Presumption of Equal Shared Parental Responsibility

Currently, section 61DA of the Family Law Act applies a presumption that parents should receive equal shared parental responsibility unless a party can show the Court that it is not in the best interests of the child. The removal of this presumption could make the process for obtaining parenting orders simpler for parties, which would in turn allow the Court to better focus on understanding the best interests of the child.

An Overhaul of the Factors Considered by the Court when Determining the Best Interests of the Child

In its existing form, the Family Law Act provides two main factors and thirteen additional factors to be considered when determining what parenting arrangement would be in the best interests of the child. The suggested changes see this being simplified to six factors of equal weight. There is also a seventh factor to be applied when the child identifies as Aboriginal or Torres Strait Islander.

Requiring that the Independent Children’s Lawyer meet with the Child

Independent Children’s Lawyers are not presently required to meet with the child whose interests they are representing. It is being proposed that Independent Children’s Lawyers must meet with all children over the age of five, so that they are able to voice any views or concerns they may have in relation to the matter.

Restricting the Filing of Potentially Harmful Applications

The amendment Bill seeks to limit the filing of applications which may be especially harmful to the child and/or the respondent. Under the proposed changes, the Court would have the power to dismiss applications it believes are frivolous, vexatious or an abuse of process.

Notwithstanding these proposed changes, navigating the family law system can be complex and confusing. To make an appointment with one of our experienced family lawyers please contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Hannah Gibson

Parents vs Grandparents vs Carers: Who Does the Court Prioritise in a Parenting Dispute?

In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.

A parenting order may be in relation to:

1. The allocation of parental responsibility;

2. With whom a child is to live; or

3. With whom a child is to spend time.

The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:

1. The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their parents; and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.

The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.

An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:

1. The aunt of the subject child is granted sole parental responsibility.  

2. The child to live primarily with the aunt.

3. The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.   

Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.

Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.  

While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

What if we can’t agree on vaccinating our child?

Now that Australians are starting to dip their toes into the brave new world of COVID-19 vaccinations, family lawyers are expecting to see a particular issue in parenting matters raise its head– vaccinating children, and what happens when parents cannot agree.

Whether or not a child is vaccinated is a major, long term parenting decision and falls within the scope of ‘parental responsibility’ under the Family Law Act. If you and the other parent really cannot agree on what, if any, vaccinations you are going to give your children, you can ask the Court to step in to make that decision for both of you.

In the recent case of Covington & Covington (2021) FLC 94-014, the Mother had consented to an order allowing their daughter to be vaccinated but tried to withdraw her consent a few days later. She filed an appeal, arguing that the Australian Constitution prohibited the Family Court from making Orders for a child to be vaccinated and that any doctor administering the vaccination would be committing an assault against their child. In dismissing her appeal, the Court held that it is well settled that the Family Court does in fact have the power to make Orders about vaccinations, both by consent and without the consent of one parent. Each matter turns on its own facts, and in this particular case, the fact that the mother changed her mind later was not a proper basis for the Court to change the original Order.

If you do find yourself in this situation, you should seek specialist family law advice before taking any steps. There is no ‘one size fits all solution when parents disagree about vaccinations. It is a complex area, and any application to the Court seeking orders about vaccinations must properly address the advantages and disadvantages of vaccinating or not vaccinating your child, not just children generally. Evidence about your child’s personal medical history and circumstances must be put forward along with expert evidence from medical specialists who are appropriately qualified to give that evidence.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.