Parents and any other persons concerned with the care of children are encouraged to try and agree matters concerning the children in their care, and to use the legal system as a last resort rather than a first resort. This often means that the parties to a parenting dispute will be required to attend Family Dispute Resolution, to try and agree a parenting plan, prior to making an application to the Family Court for a parenting order.

Before attending Family Dispute Resolution, the parties should consult with a Family Lawyer to help them understand how the Family Court would resolve their dispute in the absence of agreement. An understanding of the way in which the Family Court is required to approach parenting disputes and the types of parenting orders it can make, will often help the parties to put forward child and future focused proposals during Family Dispute Resolution, rather than proposals which are unreasonable, unworkable, and based on their own needs.

The Family Law Act 1975 requires the Family Court to regard “the best interests of the child as the paramount consideration” when deciding what parenting orders to make, including whether parents should have equal shared parental responsibility and equal time or substantial and significant time with a child.

When deciding what is in the best interest of a child, the Family Court is required to consider certain primary and additional considerations.

Primary considerations

  • The benefit to the child of having a meaningful relationship with both of its parents; and
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

Additional considerations

  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Family Court thinks are relevant to the weight it should give to the child’s views;
  • The nature of the child’s relationship with each parent and other persons;
  • The extent to which each parent has taken, or failed to take, the opportunity to participate in the child’s life such as spending time with the child, communicating with the child and making decisions about major long-term issues concerning the child;
  • The extent to which each parent has fulfilled their obligation to maintain the child;
  • The likely effect of any changes in the child’s circumstances (including the likely effect on the child of any separation from either parent or another child or person);
  • The practical difficulty and expense of the child spending time with either parent;
  • The capacity of each of the child’s parents and any other person to provide for the child’s needs, including emotional and intellectual needs;
  • The maturity, sex, lifestyle and background of the child (including culture and traditions)
  • Family violence considerations; and
  • Any other fact or circumstance that the Family Court thinks is relevant.

Equal shared parental responsibility

When making parenting orders, the Family Court “must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child”, unless a parent has engaged in abuse of the child or another child who was at the time a member of the parent’s family or has otherwise been engaged in family violence.

Parenting orders which provide for equal shared parental responsibility, require parents to consult with each other about major long-term issues (such as schooling, religion, cultural upbringing, treatment for major health issues and changes to the child’s living arrangements which would make it more difficult for the other parent to spend time with the child) and make a genuine effort to reach agreement about them.

When the presumption of equal shared parental responsibility is not applied, the Family Court will consider what alternate parenting orders it can make, which will best promote the child’s best interests.

The presumption of equal shared parental responsibility is not a presumption about the amount of time a child is to spend with each parent.

Equal time or substantial and significant time with each parent

Whether or not the Family Court makes parenting orders that provide for equal shared parental
responsibility, it must consider whether to make parenting orders for the child to spend equal or substantial and significant time with each parent.

When deciding whether to order equal time with each parent, the Family Court must:

  • Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  • Consider whether the child spending equal time with each of the parents is reasonably practical.

When deciding whether to order substantial and significant time with each parent, the
Family Court must:

  • Consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
  • Consider whether the child spending substantial and significant time with each of the parents is reasonably practical.