The Family Law Act creates a presumption that both parents have equal shared parental responsibility, meaning that both parents are able to have an input into the major long term decisions affecting a child.
The presumption of equal shared parental responsibility can be rebutted if it is not in a child’s best interest for this presumption to apply. Parental responsibility is different to considerations as to whom a child shall live with and whom a child shall spend time with.
Considerations as to a child’s living arrangements on-flow from parental responsibility. If the child’s best interests are served by having the presumption of equal shared parental responsibility apply then there is a legislative pathway which provides judges with guidance as to the determination of parenting matters.
If both parents have equal shared parental responsibility, then a Court is bound to consider the following living arrangements (in order of priority) with reference to two factors:
- Whether such living arrangements are in the child’s best interests; and
- Whether the living arrangements are reasonably practicable.
The arrangements are:
- Equal time with both parents?
- Living with one parent and spending substantial and significant time with the other parent?
- Living with one parent and spending significant time with the other parent.
Children’s Best Interests
Children have their best interests determined with reference to two key subsections of s60cc of the Family Law Act.
S60cc(2)(a) & (b) provide that a child’s best interests are primarily viewed with reference to the fact that it is in a child’s best interests to have a meaningful relationship with both parents AND provide for the need to protect a child from a risk of harm.
S60cc(3) provides for additional considerations to inform a Court of a child’s best interests, and these include (but are not limited to):
- Any views expressed by a 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;
- The need to protect the nature of the relationship between the child and its parents and other persons such as family members;
- How much both parents have been involved in a child’s life;
- The effect on changing the child’s circumstances;
- Practical difficulties in proposed arrangements;
- Maturity, sex, lifestyle and background of the child; and
- 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)
If you are considering filing an Application at Court regarding parenting arrangements, on most cases you will need a “60I” certificate. Read more about 60I certificates here: