Family Law: Parental responsibility, orders and plans

“I have the right to look after my child”. “Courts almost always think it’s in the child’s best interest to live with their mother”. “It’s easy for one parent to gain sole custody of the children”. It may surprise many people in the community to learn that all three of these statements are incorrect.

Despite popular misconceptions, the Family Law Act 1975 (Cth) (the Act) does not refer to “rights” or “custody”. All discussions of rights and custodial agreements ended in the mid-1990s with the Family Law Reform Act 1995 (Cth).  Instead, each parent has parental responsibility for children under 18. Perhaps more significantly, it is presumed that it is in a child’s best interest for “the child’s parents to have equal shared parental responsibility for the child” under s 61DA of the Act.

However, equal shared parental responsibility is not synonymous with equal time. Somewhat paradoxically, a parent may have 50 per cent of the responsibility for a child despite spending very little time with them.

Parental Responsibility

Instead of rights over a child, each parent has responsibility for their children. The Act defines “parental responsibility” broadly in s 61A as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

There is a presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility. However, this presumption can be rebutted under s 61DA(4) if the court is satisfied that equal shared parental responsibility would not be in the child’s best interests. Additionally, under s 61DA(2), the presumption does not apply if there are “reasonable grounds” to believe that a parent, or another person living with a parent, has either:

• abused the child (or another underage relative); or
• has engaged in family violence.

Otherwise, the presumption of equal shared parental responsibility will apply.

Parenting Orders and Plans

Equal shared parental responsibility should not be confused with equal time. Whether or not each parent has equal time with the child will depend on the specific parenting order or parenting plan in place.

Parenting orders replaced the more familiar "custody agreements". In essence, a parenting order outlines a child’s living arrangements and how much time each parent spends with the child. While a parenting order is a legally enforceable arrangement, a parenting plan is an informal agreement that will not be enforced by the Family Court. Parents who have an amicable relationship may prefer to use a parenting plan because they are made outside the court system, meaning lower legal costs for each party.

A child’s best interests are the “paramount consideration” for parenting orders under s 60CA. The factors to be considered when determining what is in a child’s best interests are provided for in s 60CC, with the “primary considerations” being:

• the benefit to the child of having a “meaningful relationship” with both parents; and
• the need to protect the child from physical or psychological harm.

While these primary considerations would appear to be equal, an amendment made in 2011 inserted s 60CC(2A), which notes that the protection of the child from harm is the more important consideration.

Notably, s 61D(2) of the Act makes it clear that a parenting order “does not take away or diminish any aspect of the parental responsibility of any person for the child”, unless a reduction in responsibility is expressly noted in the order, or is necessary to give effect to the order.

Therefore, despite some contrary beliefs in the community, the Family Law Act does not expressly favour the mother, and there is a presumption against giving one parent sole responsibility for the children. Parents can even agree to their own parenting plan without interference from the court. However, whether divorced (or otherwise separated) parents can agree and stick to a fair arrangement that suits both of them is another matter altogether.

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Family Law Act 1975 (Cth) - available from TimeBase's LawOne service

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) - available from TimeBase's LawOne service

Family Law Reform Act 1995 (Cth)

Attorney-General's Department, 'Parenting orders: what you need to know' (19 October 2016)

Attorney-General's Department, Children and family law