Lecture 5
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PARENTAL RESPONSIBILITY
NOTE: parental responsibility (decisions) and time (spent with parents) can be severed!
When does parental responsibility come into effect?
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Does child include foetus?
F and F [1989]
o FACT: married – separate during W’s preg (15 wks). W want abortion. H want inj
o ISSUE: does “child” include an unborn child?
o HELD: no – only applies in s67B (childbirth maintenance of M by unmarried F during preg).
When does parental responsibility end?
 Ceases when child reaches 18: s61C below.
Hewer v Bryant [1970]
 HELD: control is “dwindling right which Ct will hesitate to enforce against the wishes of the child
and the more so the older he is”.
Gillick v West Norfold and Wisbech Area Health Authority and the DHSS [1986]
 FACT: M of teenage girls (<16yrs) want declaration that unlawful for doctor to prescribe
contraceptives without M’s consent.
 HELD: no rule that <16yr girl cannot lawfully consent to contraceptive treatment.
o Parent rights taper away as child nears 18
FAMILY LAW ACT 1975 - SECT 61B
Meaning of parental responsibility
In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities
and authority which, by law, parents have in relation to children.
FAMILY LAW ACT 1975 - SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1:
This section states the legal position that prevails in relation to parental responsibility
to the extent to which it is not displaced by a parenting order made by the court. See subsection
(3) of this section and subsection 61D(2) for the effect of a parenting order….
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents.
It is not affected, for example, by the parents becoming separated or by either or both of them
marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not
made under this Act and whether made before or after the commencement of this section).
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Note: Section 111CS may affect the attribution of parental responsibility for a child.
EFFECT: each parent has responsibility
o Despite any changes to rel in nature of rel between parents
o Despite any separation, marriage, re-marriage of parents
This is subject to a Ct order.
PARENTING ORDERS
FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in
the best interests of the child for the child's parents to have equal shared parental responsibility for
the child.
Note:
The presumption provided for in this subsection is a presumption that relates solely
to the allocation of parental responsibility for a child as defined in section 61B. It does not
provide for a presumption about the amount of time the child spends with each of the parents
(this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child
(or a person who lives with a parent of the child) 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.
(3) When the court is making an interim order, the presumption applies unless the court considers that
it would not be appropriate in the circumstances for the presumption to be applied when making
that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best
interests of the child for the child's parents to have equal shared parental responsibility for the child.
 Presumption: equal shared responsibility = best interests
 Exception:
 Reasonable grounds to believe abuse
 Reasonable grounds to believe family violence
 Evidence that it would NOT be best interests
H and H [2007]
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FACT: F/M divorce + remarried. M want parenting order for sole PR – to move to Cairns.
FACTORS – Family Consultant’s advice:
o F inconsistent in time with children (demand right to time, but then dismiss when he is busy).
Unable to see effect of this on children.
o M has adequate parenting skills/capacity. But is active contributor to conflict with F.
o 2 children are primarily attached to M.
o R (older child) has strong relationship to F. Wants to move to Cairns. Aware of F’s
inconsistency and wants overnight with F, but understands he can’t due to work. Acutely
aware of conflict between parents.
o M/F in ongoing conflict over minor issues. M + new husband aware of effect on children, but
H + new wife unaware of impact of their behaviour.
o If move:
 M continue to support/promote kids’ relationship to father.
 Considerable benefit – children less likely to see/involved in conflict between parents.
 R could maintain contact with F – own communication besides physical visits.
 Cooperation between parents may be improved.
ISSUES: Presumption of equal shared PR rebutted by:
o Abuse/family violence: s61DA(2)?
o Not in best interests: s61DA(4)?
HELD: Rebutted! Sole PR awarded to M.
o Abuse/family violence:
 M claim aggressive behaviour/harassment by F – but she is equal contributor to
conflict.
 Also – not meet threshold of abuse/violence.
o Not in best interest:
 Relatively high threshold – Pt VII so strongly encourages shared parenting, that it is
not likely to be easily subverted.
 BUT this is one of the rare cases that do meet the threshold.
 Parental conflict is so high
 Move will have significant benefit for children.
 Irrelevant that M has been an active participant in conflict – purpose is not to
look at fault/punishment of parents, but what is BEST for children.
FAMILY LAW ACT 1975 - SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑
term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
a)
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are
made by the person with whom the child is spending time without a need to consult the other
person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
a. (4) To avoid doubt, this section does not require any other person to establish, before acting on a
decision about the child communicated by one of those persons, that the decision has been made jointly.
 If shared parental responsibility – and making decision re major long term issue re child
a. Parties must consult other person re decision
b. Parties must make genuine effort to come to joint decision.
c. No need for 3rd party to confirm that it was a joint decision.
 If NOT a major long term issue  decision can be made solely by person whom child is spending
time with.
FAMILY LAW ACT 1975 - SECT 4
Interpretation
"major long-term issues" , in relation to a child, means 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:
(a)
(b)
(c)
(d)
(e)
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.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of
itself, a major long‑term issue in relation to the child. However, the decision will involve a major
long‑term issue if, for example, the relationship with the new partner involves the parent moving to
another area and the move will make it significantly more difficult for the child to spend time with
the other parent.
PARENTAL RESPONSIBILITY v PARENTING ORDER
Goode and Goode [2006]
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Parental responsibility (s61C) – parties may make decisions independently or jointly
Parenting order (s65DAC) – parties must make decisions jointly.
BEST INTEREST PRINCIPLE
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful
involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or
exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their
full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the
care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a
child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of
whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a
regular basis with, both their parents and other people significant to their care, welfare and development
(such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and
development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture
with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander
child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and
developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
FAMILY LAW ACT 1975 - SECT 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the
best interests of the child as the paramount consideration.
FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must
consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's
parents; and
(b) the need to protect the child from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part
set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level
of understanding) that the court thinks are relevant to the weight it should give to the
child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a
close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely
effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of
the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating
with a parent and whether that difficulty or expense will substantially affect the
child's right to maintain personal relations and direct contact with both parents on a
regular basis;
(f) the capacity of:
i. each of the child's parents; and
ii. any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions)
of the child and of either of the child's parents, and any other characteristics of the
child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
i. the child's right to enjoy his or her Aboriginal or Torres Strait Islander
culture (including the right to enjoy that culture with other people who
share that culture); and
ii. the likely impact any proposed parenting order under this Part will have
on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by
each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family,
if:
i. the order is a final order; or
ii. the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to
the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the
child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the
extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
i. to participate in making decisions about major long‑term issues in relation to
the child; and
ii. to spend time with the child; and
iii. to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
i. participating in making decisions about major long‑term issues in relation to
the child; and
ii. spending time with the child; and
iii. communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard,
in particular, to events that have happened, and circumstances that have existed, since the separation
occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the
proceedings, the court may, but is not required to, have regard to all or any of the matters set out in
subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's
right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and
developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Mazorski and Albright (2007)
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ISSUE: what does “meaningful relationship” in s60CC(2) mean?
HELD:
o Rel that is important, significant and valuable to Child.
o Qualitative NOT quantitative (does not mean extent of time).
Other Considerations
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Importance of unstructured time – P/C free to “hang out” in conditions for free-flowing interpersonal
engagement.
Shared parenting may be detrimental, where parents are conflicted.
EQUAL TIME or SUBSTANTIAL & SIGNIFICANT
TIME
FAMILY LAW ACT 1975 - SECT 65DAA
Court to consider child spending equal time or substantial and significant time with each parent
in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared
parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best
interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably
practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the
child to spend equal time with each of the parents.
Note 1:
The effect of section 60CA is that in deciding whether to go on to make a parenting order for
the child to spend equal time with each of the parents, the court will regard the best interests of the child
as the paramount consideration.
Note 2:
See subsection (5) for the factors the court takes into account in determining what is
reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared
parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend
equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents
would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents
is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the
child to spend substantial and significant time with each of the parents.
Note 1:
The effect of section 60CA is that in deciding whether to go on to make a parenting order for
the child to spend substantial time with each of the parents, the court will regard the best interests of the
child as the paramount consideration.
Note 2:
See subsection (5) for the factors the court takes into account in determining what is
reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time
with a parent only if:
(a) the time the child spends with the parent includes both:
(i)
days that fall on weekends and holidays; and
(ii)
days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)
the child's daily routine; and
(ii)
occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and
events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining
whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a
child to spend equal time, or substantial and significant time, with each of the child's parents, the court
must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending
equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve
difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1:
Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in
determining what parenting order the court should make in the best interests of the child. Subsection
60CC(3) provides for considerations that are taken into account in determining what is in the best
interests of the child. These include:
(a) the willingness and ability of each of the child's parents to facilitate, and encourage, a close
and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of
the child's parents (paragraph 60CC(3)(i)).
Note 2:
Paragraph (c) reference to future capacity--the court has power under section 13C to make
orders for parties to attend family counselling or family dispute resolution or participate in courses,
programs or services.
HOW THESE SECTIONS ALL RELATE:
Goode and Goode (2006)
1. Default: each parent has parental responsibility for <18yr child: s61C
2. Parenting order made:
a. Presumption that equal shared parental responsibility is best interest of child: s61DA(1)
b. Unless reasonable grounds to believe child abuse or family violence: s61DA(2)
c. Presumption applies to interim orders too: s61DA(3) (look below at Goode and Goode)
3.
4.
5.
6.
d. Presumption rebutted if not in best interest: s61DA(4)
If presumption applies: Ct must make order
a. For equal time - if best interests of child (s60CC) and reasonably practicable: s65DAA(1)
b. Otherwise, substantial/sig time – if bests interests (s60CC) and reasonably practicable:
s65DAA(2)
If neither works – determine according to best interests.
Best interests can be ascertained by considering objects/principles, and primary/additional
considerations: s60B and s60CC
If presumption doesn’t apply: Ct is “at large” to consider arrangement to promote best interest:
s60CC.
KML and RAE [2006]
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What is “substantial and significant time”?
o Eg. assisting with homework, P taking C to sport training/games, P attend performances of
C’s extracurricular (music, dance etc), C to experience life as part of P’s household (P
cooking, washing, cleaning child, C to do some household responsibilities)
o Does not req P to be involved in EVERY facet of C’s life or be involved on weekly basis.
o “What is required is a common sense approach based on the facts of the particular case, and
not a formulaic, one size fits all, approach”.
P should provide Ct with info re C’s interest/activities (what, when) so Ct can make proper
assessment.
H and H (2003) – pre 2006 reform case
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FACTS: 3 children. From birth, F very busy – executive job. Separate – F get alt wkd and 1 night alt
wk. Now, F want equal time.
HELD: denied – children have good relationship with F/M atm – well ordered lives with continued
care in their primary care giver (M).
FACTORS:
o Post separation, M prime care giver. Superior capacity to meet all their needs.
o Post separation, F spends more time with children, participate in school/friendships.
o Conflict – parents can’t communicate re arrangements for children.
o Children overwhelmed by activities if equal parenting – already swim, dance, gymnastics
with each parent.
o F’s aspirational – but how to manage full time exec job and full time care of children?
Unlikely F’ll work < 35 hrs/wk.
o Availability of time for children is insufficient to itself justify changing living arrangements.
o F lack of insight into distress of removing children from M’s primary care
Parker & Parker [2007]
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FACTS: 1 child. F have 3/14 nights. Want 7/14 (equal).
FACTORS: applying s60CC(3) FLA
o Child’s view: indicated need/desire for both parents involvement in life: (a)
o Child’s rel with each parent: (b)
 W primary care provider on day-to-day basis. H close rel and now show capable of
caring for C in H’s accom. Rel to child hampered by conflict.
 Rel with F/M sufficient strength – can increase time with H, so long as W remains
primary care giver.
o Willingness/ability of parent to facilitate/encourage rel with other parent: limited (c)
 F very limited – demand min 9/14 night with child. Cause distress for child thru
major change to life.
 M limited – doesn’t encourage rel with F, just wants to maintain current arrangement.
o Effect of separation from parent on child: (d)
 1 period of 5 night with F successful  NOT sufficient to say C can handle 7 nights
regularly!
 Some separation anxiety – caused by conflict between parents upon exchanging C.
o Practicality/expense of equal: no problem – live close/transport: (e)
o F/M’s capacity to provide for C’s needs: limited by conflict: (f)
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o Maturity etc of child: not issue: (g)
o Abo/TI: n/a (h)
o F/M’s attitudes towards child and parenting duties: (i)
 F: financial oblig to C is 2nd to financial oblig to religion. Failed to look into current
ways to improve income – didn’t think of how to fund/facilitate equal time.
o Family violence: n/a (j) (k)
o Best way to prevent further litigation: n/a (l)
o Other fact/circumstances: (m)
 F’s attitude towards M’s ex nuptial birth (out of wedlock) – religious beliefs see as
“evil”.
 C expose to F’s statements towards M.
HELD: once-off increase in time with F (not equal thou) – must be cautious.
Presumption of = shared parental responsibility – application to interim orders
Goode and Goode (2006)
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Pre amendments (Cowling v Cowling [1998])
o Pro contact culture
o Preserving stability/status quo if child is settled/unharmed with resident parent.
Now:
o Move away from preserving stability/status quo  best interests (s60CC etc)
o Stability may still be preserved  if in best interest of child (but must go through Act
considerations still)
o Give non-resident parent more time