Each of the parents of a child who has not turned 18 years has “parental responsibility” for the child: s 61C , Family Law Act 1975. Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”: s 61B, Family Law Act 1975. This presumption does not apply in certain circumstances and can be rebutted.

There is a presumption, when a parenting order is being made in relation to a child, that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility: s 61DA , Family Law Act 1975. This presumption does not apply in certain circumstances and can be rebutted. It is also possible for one parent to have sole parental responsibility or for a person other than a parent of the child to have parental responsibility (sole or shared) for that child.

When parental responsibility is shared between two or more persons, there is a legal requirement for those persons to make decisions that are major long term decisions for that child jointly. This means that each person has to consult with the other and make a genuine effort to come to a joint decision about that issue. It does not actually require agreement for a decision to be made jointly, although depending what the issue is about logistically it may not be possible to implement a decision without the written consent of both or all persons with parental responsibility (eg, medical decisions, changing a child’s name or to enrol in a private school). In these cases a court order may be required where the parties do not agree. There is no need for consultation on decisions which are not major long term decisions, ie the day to day decisions about what a child eats, discipline, sleeping times etc. See ss 65DAC and 65DAE FLA.

Practice Tip: For a case which looks at how to approach the task of drafting orders for parental responsibility see Pavli v Beffa . For a case where the court determined that a parent was to have no parental responsibility see Modlin & Anstead .

Major long term issues is defined in s 4, FLA to mean issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

• the child's education (both current and future); and

• the child's religious and cultural upbringing; and

• the child's health; and

• the child's name; and

• changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

See B and B and Goode v Goode [2006] FamCA 1346.

See Parental responsibility.

Part VII of the Family Law Act 1975 provides the substantive framework for parenting orders; that is, applications and orders concerning care arrangements for children following the breakdown of the parents’ relationship. Part VII is intended to be a comprehensive set of principles to be followed in all cases where parenting orders are sought pursuant to the Family Law Act. The object of Pt VII is to ensure that the best interests of children are met.

Part VII is divided into a number of divisions, each dealing with separate aspects of the law to be applied. Care must be had to refer to the relevant division when making an application to the court to ensure that all relevant aspects are considered.

See Parenting orders.

If the presumption of equal shared parental responsibility applies, (it can be rebutted where there is family violence or high levels of conflict between the parties) the court must firstly consider that child spending equal time with each parent and, if equal time is not in the child's best interest, the consider whether it is reasonably practicable for the child to spend equal time with both parties and, if not, then the court must consider the option of the child spending "substantial and significant time" with each parent.

See Shared and substantial care.

Primarily, parenting orders are concerned with the time that the child “lives with” or “spends time with” each parent. This is usually the most contentious issue in applications for parenting orders.

Orders that parents have “parental responsibility” have previously been known as “guardianship” or “long term care, welfare and development” orders. Orders that a child “lives with” a particular parent have previously been known as “custody” orders and “residence“ orders. Similarly, orders that a child “spends time with” a parent were previously known as “access” or “contact” orders. Transitional provisions to the Family Law Act have carried forward these terms insofar as existing orders are concerned, but otherwise those terms are no longer (legally) used.

See Live with and spend time with orders.

Family violence is recognised to be one of the circumstances that can have the most impact on the welfare of a child and for this reasons, the Family Law Act repeatedly makes reference to that violence where it occurs and to the special provisions that are made when it exists.

Family violence means actual or threatened conduct which causes a reasonable fear of a person’s well-being or safety: s 4(1) , Family Law Act 1975. It does not only mean violence directed towards the child but clearly includes the child witnessing family violence or the aftermath thereof (eg a party upset following violence, damage to property etc) and any actual or threatened conduct between parties or from one party to another person. For this reason, the existence of family violence between spouses is seen as having, or potentially having, an adverse effect on the child and/or the parenting capacity of the victim of that violence.

In all applications dealing with children, there is a need to consider whether family violence is a factor and the short and long term legal and psychological effects of that violence might be on the child who is the subject of the application and the adult victim of the child. Family violence will affect individual children differently and evidence should be lead that is specific to that child as well as expert evidence about the neurological, psychological and behavioural impact on family violence on the development of the child. The Court is also required under the Family Law Act (and in WA, where applicable, the Family Court Act 1997 (WA), to take into account any family violence protection orders which may exist (eg, for the protection of the parent and/or the children) and ensure that any family court orders are consistent with such orders to the extent possible. Where there is inconsistency, the Family Court orders will override the (state Court) family violence orders but only to the extent of the inconsistency.

Practice Tip: Practitioners should take active steps to ascertain whether any family violence orders exist and that details of the order made (if not a copy of the actual order) and, where possible, the evidence on which the state family violence order was made, is put into evidence in the family court proceedings. In some states (eg, Western Australia) the proceedings are recorded so parties can obtain a copy of the transcript for the family violence order ex parte proceedings and tender the transcript into evidence in the family court proceedings.

See Allegations of family violence or child abuse.