Children & Parenting Arrangements

There is no set age at which a child can choose who they live with or choose when (or whether) they see the other parent. A child is legally a minor until he/she turns 18. Paragraph 60CC(3)(a) of the Family Law Act 1975 (“the Act”), provides that in determining what is in a child’s best interest, the court must consider, among other factors, any ‘views’ expressed by the child and any other factors that the court thinks are relevant to the weight it should give to the child’s “views”.  It is intended that the “views” will also capture a child’s perceptions and feelings however children are not required to express their views if they do not choose to do so (s60CE). 

The court may inform itself of the views of the child in any way it deems fit, subject to the Federal Circuit and Family Court Rules (s60CD(2)).  Typically, this is done by way of an Expert Report prepared by a family and child consultant.  A child’s views may also be expressed through an Independent Children’s Lawyer appointed pursuant to s68L. 

At what age a child’s views may be considered will depend on their maturity and level of understanding. It has been recognised that children as young as five can talk about their feelings and what situations mean to them despite the complexity of their experience.

Notwithstanding the above, while real weight must be accorded to the expressed views of a child, the court is not bound by a child’s views – ultimately the best interests of the child are paramount.  In this regard, other s60CC factors may take precedence to any view expressed by the child. 

No. Section 60CC(3)(b) of the Family Law Act 1975 (“the Act”) requires consideration of a child’s relationship with both parents and other significant persons – if relevant.  The Act emphasises the benefits of regular contact with both parents, unless it is not safe to do so.  The principles enumerated in s60B provide a basis for interpreting s60CC(3)(b).

Parental responsibility (PR) means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s61B of the Family Law Act 1975 (“the Act”)).  Parents are legally responsible for their children until a parenting order or plan provides otherwise (s61C of the Act).  

Such an order requires the parties to consult each other about major long-term issues and make a genuine effort to reach a joint decision about it (s65DA). Major long-term issues are defined in s4(1) of the Act and include the child’s:

• Education (both current and future)
• Religious and cultural upbringing
• Health
• Name
• Changes to their living arrangements that make it significantly more difficult for the child to spend time with a parent (e.g. a proposed relocation with a new partner)
• Any other long-term issue about the care, welfare and development of the child.

It does not include ordinary day-to-day matters that may be made when the child is in the care of a parent i.e. attending birthday parties or sleep-overs, bed-time, diet etc. Hence, a party who spends time with a child under a parenting order does not need to consult with the other about issues that are not “major long-term issues”.  

The court will not interfere with how a parent sees fit to care for a child in their care under an order unless “the welfare of the child will be clearly advanced” by doing so (see VR & RR [2002] FamCA320 (FC) at [28]-[30] – in this case the mother unsuccessfully took issue with the father’s arrangements while the children were on “his” time). 

Under the Act, there exists a presumption of equal shared parental responsibility (see s61DA). It is important to understand however that this is NOT the same as equal shared care – for which no presumption exists.  The presumption also does not apply in situations of child abuse and family violence and therefore is rebuttable. 

When making such an order “the court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” (s61DA(1) of the Family Law Act 1975 (“the Act”)). This presumption relates solely to the allocation of parental responsibility.  It is NOT a presumption about the amount of time a child is to spend with each parent.

The presumption applies to both interim and final orders.  It will now however apply if there are reasonable grounds to believe that a parent (or person who lives with a parent) has engaged in:

(a)  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); OR

(b)  Family violence: s61DA(2).

For the presumption not to apply in interim proceedings, there must be circumstances in which the court considers it would  not be appropriate to apply the presumption (s61DA(3) of the Act).

“Abuse of a child” means an assault of the child, including a sexual assault; a person involving the child in a sexual activity in which the child is used directly or indirectly as a sexual object, where there is unequal power in the relationship between the child and that person; causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to or exposed to family violence, or serious neglect of the child (s4(1) of the Act).

A child is “exposed to family violence” if the child sees or hears family violence or otherwise experiences the effects of family violence (s4AB(3)).

When the presumption of equal shared parental responsibility is not applied, the Court is still required to consider what arrangements will best promote the child’s best interests as this remains the overriding consideration. 

“Family violence” means violent, threatening or other behaviour that coerces and controls a family member or causes them to be fearful (s4(1) and 4AB(1).  Examples of behaviour that may constitute family violence include (but are not limited to) an assault; a sexual assault or other sexually abusive behaviour; stalking; repeated derogatory taunts; intentionally damaging or destroying property; intentionally causing death or injury to an animal; unreasonable denying the family member the family member the financial autonomy that he or she would otherwise have had; unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; preventing the family member from making or keeping connections with his or her family, friends or culture, and unlawfully depriving a family member of his or her liberty: s4AB(2).

Parental responsibility lasts until a child reaches the age of 18 or marries between the ages of 16 and 18.  Any parenting orders made are not enforceable against a child, rather the parties to the proceedings themselves i.e. the parents.  In cases where a child refuses to see a parent, the other parent is still required to do all that is possible to facilitate the parenting orders.  What steps are taken by that parent to encourage the child to spend time with the other parent will be an important consideration should contravention proceedings be initiated i.e. have they engaged with a family therapist/counsellor to address the issue?. Other factors that may be taken into consideration is the child’s age, the reasons for their refusal, any overt acts (e.g. running away) or parental manipulation of the child. 

Where a parent is in breach of the parenting orders, the non-breaching party can file an Application – Contravention with the court.  Before filing however, you should consider the result that you want to achieve.  The remedies available from the Court range from the enforcement of an order to the punishment of a person for failure to obey an order.  For example, the Court may make an order that:

• Ensures the resumption of the arrangements set out in the earlier orders (with say, an order for enabling the review of the resumption i.e. by listing the case for mention in x weeks’ time)
• Compensates a person for lost contact time (s70NDB of the Family Law Act 1975 (“the Act”))
• Varies an existing order (s70NBA i.e. reverses who the child lives with)
• Puts a person on notice that if the person does not comply with an order, the person will be punished
• Or punishes a person by way of a fine or imprisonment (please note this is very rare).

If you do not want the other party punished (e.g. fined or imprisoned) for the breach but rather want to ensure the resumption of the arrangements, you should file an Application – Enforcement (pursuant to Part 11.2 of the Federal Circuit and Family Law Rules (Family Law Rules) 2021), rather than an Application – Contravention (pursuant to Division 13A of Part VII of the Act).

Contravention proceedings should be confined to the clearest cases.  In such cases, the Applicant must prove that the Respondent:

• Intentionally failed to comply with the order; or
• Made no reasonable attempt to comply with the order, and
• Has no “reasonable excuse for contravening” the order under s70NAE or any other “reasonable excuse”.

The fact that an order is found to be “entirely unworkable”, may satisfy the Rice & Asplund threshold for variation of the order.

The court recognises that a parent’s “flagrant disregard” of a parenting order can undermine relationships between family members (Bondelmonte [2017] HCA 8 at [39]).

The Full Court said in R & R (Children’s Wishes) [2002] FamCA 383 at [177] that the “serious” act of “depriving the father of contact in circumstances … engineered by the mother… cannot be in a child’s best interests”.  Care was reversed in Irish & Michelle [2009] FamCA 66 and McDermott & Bond [2009] FamCA 1161.  An innocent parent’s time was increased in Hacker [2009] FMCAfam 217. For proof of alienation, see Roberts [2009] FMCAfam 912 at [120]-[121] and [227].  For the use of published research, see McGregor [2012] FamCAFC 69.

Under section 62G of the Family Law Act 1975 (“the Act”), the court can make an order to appoint a family consultant to prepare an expert report on such matters it considers relevant to the proceedings (e.g. wishes of the children as to the time they wish to spend with each parent; alleged parental alienation and if parental alienation has occurred, and the impact that such alienation has had on the children, and recommended treatment; as to the children’s relationship with each parent etc)

The cost of this reports ranges between $6,000 to $20,000 depending on the expert. Each party is required to pay one half of the costs of the family report unless the court decides differently.

• Ensures the resumption of the arrangements set out in the earlier orders (with say, an order for enabling the review of the resumption i.e. by listing the case for mention in x weeks’ time)
• Compensates a person for lost contact time (s70NDB of the Family Law Act 1975 (“the Act”))
• Varies an existing order (s70NBA i.e. reverses who the child lives with)
• Puts a person on notice that if the person does not comply with an order, the person will be punished
• Or punishes a person by way of a fine or imprisonment (please note this is very rare).

If you do not want the other party punished (e.g. fined or imprisoned) for the breach but rather want to ensure the resumption of the arrangements, you should file an Application – Enforcement (pursuant to Part 11.2 of the Federal Circuit and Family Law Rules (Family Law Rules) 2021), rather than an Application – Contravention (pursuant to Division 13A of Part VII of the Act).

Contravention proceedings should be confined to the clearest cases.  In such cases, the Applicant must prove that the Respondent:

• Intentionally failed to comply with the order; or
• Made no reasonable attempt to comply with the order, and
• Has no “reasonable excuse for contravening” the order under s70NAE or any other “reasonable excuse”.

The fact that an order is found to be “entirely unworkable”, may satisfy the Rice & Asplund threshold for variation of the order.

The court recognises that a parent’s “flagrant disregard” of a parenting order can undermine relationships between family members (Bondelmonte [2017] HCA 8 at [39]).

The Full Court said in R & R (Children’s Wishes) [2002] FamCA 383 at [177] that the “serious” act of “depriving the father of contact in circumstances … engineered by the mother… cannot be in a child’s best interests”.  Care was reversed in Irish & Michelle [2009] FamCA 66 and McDermott & Bond [2009] FamCA 1161.  An innocent parent’s time was increased in Hacker [2009] FMCAfam 217. For proof of alienation, see Roberts [2009] FMCAfam 912 at [120]-[121] and [227].  For the use of published research, see McGregor [2012] FamCAFC 69.

Yes. Regardless of whether you are spending time with your child or not, you have a moral, ethical and legal responsibility to pay for your child.  A parent who refuses to pay child support on the basis that they do not get to see or spend time with their chid OR who withholds a child from spending time with the other parent for financial advantage, may be deemed by the court as failing to act in the best interests of their child.  

Put simply, the court does not view the Australian taxpayer as being financially responsible for paying for your child’s upkeep – rather it is your responsibility. Hence, a parent who fails to apply for child support, in the absence of family violence or abuse, may be viewed upon with equal criticism as a parent who refuses or neglects to pay child support.  

Child support is assessed by the Child Support Registrar care of the Australian Government Department of Human Services (DHS).  This is done by applying a formular under Part 5 of the Child Support (Assessment) Act 1989 (the “Assessment Act” or the “CSAA”).

The behaviour of the parties regarding the financial upkeep of their children will be a consideration of the court when making parenting orders as it relates to the extent to which each parent has taken, or failed to fulfil, that parent’s obligation to maintain their child (s60CC(3)(ca) Family Law Act 1975). 

Yes. Regardless of whether you are spending time with your child or not, you have a moral, ethical and legal responsibility to pay for your child.  A parent who refuses to pay child support on the basis that they do not get to see or spend time with their chid OR who withholds a child from spending time with the other parent for financial advantage, may be deemed by the court as failing to act in the best interests of their child.  

Put simply, the court does not view the Australian taxpayer as being financially responsible for paying for your child’s upkeep – rather it is your responsibility. Hence, a parent who fails to apply for child support, in the absence of family violence or abuse, may be viewed upon with equal criticism as a parent who refuses or neglects to pay child support.  

Child support is assessed by the Child Support Registrar care of the Australian Government Department of Human Services (DHS).  This is done by applying a formular under Part 5 of the Child Support (Assessment) Act 1989 (the “Assessment Act” or the “CSAA”).

The behaviour of the parties regarding the financial upkeep of their children will be a consideration of the court when making parenting orders as it relates to the extent to which each parent has taken, or failed to fulfil, that parent’s obligation to maintain their child (s60CC(3)(ca) Family Law Act 1975). 

Yes. In the absence of a court order saying otherwise, each parent is entitled to know where the children are. They are also entitled to know who children are left with when they are not with the other parent. 

In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present. You can also decide whether to introduce them to a romantic partner or not and when to do this.  

In the absence of a court order, no, you cannot stop your ex’s new partner from spending time with your children UNLESS there exists a genuine risk of harm. If you believe that your child is at risk of immediate harm from your ex-partner’s new partner, then you should contact the police. You may also apply for a court order that prohibits your ex-partner’s new partner from spending time with your children.  If applying to the court, you should seek legal advice however before taking such action as a failed application may result in an outcome that is undesirable to you i.e. change in parenting arrangements for failure to facilitate parenting orders without just cause.