On 1 July 2006 the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into effect. This legislation focuses on facilitating the rights of children to have a meaningful relationship with both parents by encouraging parents to share responsibility for their children post separation.
Since 1 July 2006 a legal presumption exists that parents have “shared parental responsibility” for their children. Shared Parental Responsibility means that parents share in making major long term decisions pertaining to their children. This presumption can only be rebutted by evidence establishing abuse or family violence.
If the presumption is not rebutted then parents are obliged to consult with each other in an attempt to agree on such matters as education, healthcare and the cultural upbringing of the child.
A further effect of Shared Parental Responsibility amendment is that where the presumption has not been rebutted in an Application for Parenting Orders, the Court must consider making orders that the child spend equal time or significant and substantial time with each parent unless this would be contrary to the child’s best interests or not reasonably practicable.
Significant and substantial time requires that there be periods that both fall on weekends, during the week and on holidays, where possible.
The Family Law Act contains specific criteria that the Court must consider in making a determination as to what is in the child’s best interests. In deciding what is in the best interests of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:
- The benefit to the child of a meaningful relationship with both parents;
- The need to protect children from physical or psychological harm (from being subjected to or exposed to abuse, neglect or family violence)
- The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding;
- The child’s relationship with each parent and other significant people, including grandparents and other relatives;
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
- The likely effect on the child of a change in circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives;
- The practical difficultly and expense of a child spending time with and communicating with a parent;
- Each parent’s ability (and that of any other person) to provide for the child’s needs;
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
- The right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right;
- The attitude of each parent to the child and to the responsibilities of parenthood;
- Any family violence involving the child or a member of the child’s family;
- Any family violence order that applies to the child or a member of the child’s if:
- The order is a final order, or
- The making of the Order was contested by a person.
- Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child; and
- Any other fact or circumstance that the court thinks is relevant.
A court must also take into consideration the extent to which each parent has or has not previously met their parental responsibilities, in particular:
- Taken the opportunity to:
- Participate in decision-making about major long-term issues about the child;
- Spend time with the child;
- Communicate with the child, and has:
- Met their obligations to maintain the child, and
- Facilitated (or not) the other parent’s involvement in these aspects of the child’s life.
If a child’s parents have separated, a court must further consider events and circumstances, and the behaviour of both parties, since the separation.
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