Children – parenting after separation

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

This section covers the law and approach in deciding where and with whom children should live after separation, how much time they should spend with each parent, who should have responsibility for making decisions about important issues.

Terminology you should know

The terms ‘custody’, ‘access’ and ‘contact’, while used quite often by people and the media, have not been part of the law for many years. Lawyers, Family Dispute Resolution practitioners and the Courts will use the current terminology in the Family Law Act 1975, so it is important to know what the main terms mean. These are:

Parenting Orders

A Parenting Order is the Order the Court makes about children. A Parenting Order commonly deals with:

• who the child lives with;
• the time the child spends with the parent and others with whom they don’t live;
• communications between the child and other people;
• whether parental responsibility for the child is shared between the parents or some other arrangement.

Parental Responsibility

• Parental responsibility is defined in s 61B of the Family Law Act 1975 and is ‘..all the duties, powers and responsibilities which, by law, parents have in relation to children’;
• This means parents have responsibility for decisions about major long-term issues, such as where children will go to school, as well as day-to-day decisions, such as what to put in the school lunchbox;
• Each parent has parental responsibility until the child is over 18, or unless this is changed by a Court Order or agreement;
• This is the legal position of parents before and after separation, providing no Court Orders or agreements have been entered changing this position.

Equal Shared Parental Responsibility (ESPR)

• This term was introduced in the Family Law Act 1975in 2006;
• The Family Courts can make an order for parents to have ESPR. This means that parents equally share responsibility for decisions about major long-term issues about their children. ESPR does not include sharing of day to day decisions. ESPR is only about sharing of decisions, not about the time the child spends with either parent;
• Major long-term issues are defined in the Family Law Act and include education, religious and cultural upbringing, health, 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.’

Sole Parental Responsibility

• Where one parent has sole responsibility for major long-term decisions about the child.

Lives with, spends time with, communicates with

• This is the terminology that has replaced custody, access, visitation, residence and contact;
• Courts can make orders, or parents can agree, about who a child lives with. This can encompass that the child lives with both parents, even if this is not for equal time. Example: ‘Child lives with the mother for nine days a fortnight and lives with the father for five days a fortnight’;
• Where a child mainly lives with one parent, the Courts can make orders, or parents can agree, that a child will spend time with and/or communicate with the other parent, or other people in the child’s life. Example: ‘The child shall live with the father and spend time with the mother from 9am each alternate Friday to 5pm the following Monday. The mother may communicate with the child by telephone and email.’

Who can apply for parenting orders?

Any person concerned with the care, welfare or development of a child can make an application to the Federal Circuit and Family Court of Australia (FCFC) for Parenting Orders. Section 65C of the Family Law Act 1975 specifies thisand that the following people can make an application:

• Either or both of the child’s parents; or
• The child; or
• A grandparent.

Child’s best interests paramount consideration

The overriding consideration for the Court when making a Parenting Order is that the best interests of the child are the paramount consideration (s 65AA Family Law Act 1975). Parents have few ‘rights’ in family law, as focus is instead on the child’s rights and best interests.

How do the Courts decide what is in a child’s best interests?

Primary Considerations

The Family Law Act 1975 sets out a list of considerations that the Courts must balance in coming to a decision. These are contained in s 60CC of the Family Law Act 1975 and you may hear Courts and lawyers refer to them as ‘the s60CC factors.’ First there are two primary considerations which are:

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

The second consideration, protection of children, is given greater weight by the Courts than the benefit of a meaningful relationship.

Additional Considerations

Next, s 60CC(3) sets out a list of additional considerations which guide the Courts in determining what is in a child’s best interests. These include:

• Any views of the child, taking into account the child’s maturity and level of understanding;
• The relationship the child has with their parents and any other people;
• The extent to which each parent has been involved in decision making and caring for the child;
• The extent to which each parent has maintained the child;
• The effect of any change on the child, including the effect of separation from a parent, siblings, grandparents or other people living with the child;
• The practical difficulty and expense of a child spending time and communicating with a parent and how that impacts on the child maintaining a relationship with that parent;
• The capacity of the parents and any other important person, e.g, a grandparent, to meet the needs of a child, including their emotional and intellectual needs;
• The maturity, sex, lifestyle, background and culture of either parent;
• The attitude to the child and to the responsibilities of parenthood demonstrated by each parent;
• Any family violence involving the child or a member of the child’s family;
• If there is or has been a Family Violence Order applying to a child or a member of their family, any inferences that should be drawn from that.
• Anything else that is relevant.

Additional considerations applying to Aboriginal or Torres Strait Islander (ATSI) children

• The child’s right to enjoy their ATSI culture, including with other people who share that culture; and
• The likely impact of any parenting order on that right;
• A child’s right to enjoy their ATSI culture includes the right:
  • to maintain a connection with that culture; and
  • to have the support, opportunity and encouragement necessary to explore and develop a positive appreciation of that culture, consistent with the child’s age, development and views.

Mandatory process the Family and Federal Circuit Court follows in making a Parenting Order

The Family Law Act 1975 sets out a series of steps the Courts must take when deciding what Parenting Order to make.

1. Presumption of Equal Shared Parental Responsibility (ESPR)

• The starting point is a presumption that ESPR is in the best interests of the child (s 61DA Family Law Act 1975);
• ESPR means parents have joint decision making about major long-term issues. It does not relate to the time children spend with each parent, or where they live;
• The presumption does not apply if there are reasonable grounds to believe that a parent (or a person who lives with the parent) has engaged in child abuse or family violence (s 61DA Family Law Act 1975). However, the Courts can still make an order for ESPR if it is in the child’s best interests;
• The presumption may be displaced or rebutted by showing it is not in the child’s best interests for the parents to have ESPR (s 61DA Family Law Act 1975);
• For example: The child’s mother has given evidence about a number of assaults on her by the father. ESPR would not apply;
• In another example: There is no violence or child abuse so the presumption of ESPR applies. However, the child’s mother has a serious drug addiction which affects her decision making capacity. ESPR is not in the child’s best interests, the presumption is displaced and the father has sole parental responsibility.

2. If presumption of ESPR does not apply or is displaced

The Courts consider what arrangements in relation to parental responsibility and time and communication are in the best interests of the child

3. If presumption of ESPR applies and is not displaced

• This means that the presumption applies, and the Court has found that it is in the child’s best interests for the parents to have ESPR, that is, to share equally in decision making about major long-term issues affecting the child;
• The Courts must then consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent;
• In considering best interests, the Court uses the factors set out in How do the courts decide what is in a child's best interests.
• In considering reasonable practicality, the Court considers how close the parents live to each other, their capacity to communicate and collaborate in the shared care of the child, and the impact on the child’;
• If the Court considers that it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent, that is the Order the Court is likely to make;
• If the Court considers that it is not in the child’s best interests or not reasonably practicable to spend equal time with each parent then the Courts must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend substantial and significant time with the parent with whom they won’t be living;
• Substantial and significant time means arrangements that include the child spending time on weekends, holidays and weekdays and that allows the parent with whom the child is not living to be involved in their routines and special occasions.
• For example: The Court might make an Order that the child live with the mother and spend time with the father from Thursday morning to Monday morning each alternate week, and for the father to collect the child from school each alternate Wednesday to take her to soccer practice. The Order would also provide that the child spends time with the father on special occasions such as birthdays and Christmas and spends some of their school holidays with the father.

Applying the law to your own situation

• Many parents don’t go to court about their children and come to an agreement about how they will parent after separation. This is covered in Coming to an Agreement;
• It is useful to know what the law is, and what the Courts must do, to guide you in assessing your own situation and to know what facts are relevant in your own case before coming to an agreement or going to court;
• As each child and family situation is unique, getting advice from a lawyer before coming to an agreement or going to court is really useful and initial advice can be at no cost. See Contacts and Resources.

Parenting and the Law– Frequently asked Questions

Do children have to spend equal time with each parent?

No. The Court will only make an order that a child spend equal time with each parent if it is in the child’s best interests.

If you are making a private agreement or consent orders about who your child lives with and spends time with, you do not have to consider a child spending equal time with each parent. Sometimes, this may be inappropriate or practically difficult, for example, if it affects the child’s ability to attend a school.

One very important consideration will be whether it is developmentally appropriate for a child to be in an equal shared care arrangement. It is unlikely that shared care is appropriate for a very young child, however, parents can agree to change arrangements as the child grows up.

When making a Parenting Order, the Court will only order that a child spends equal time with each parent if it is in the child’s best interests and is reasonably practicable. Otherwise, the Court may order that a child spends substantial time, some time, or no time with a parent.

Section 65DAA of the Family Law Act 1975 deals with when the Court should consider making an order for equal time.

When can children decide who they want to live with and whether they see the other parent?

Children’s views are important, but they are not the only consideration in family law decisions. The older and more mature a child is, the more weight their views will have. There is no set age for this.

The most important consideration in deciding how much time a child spends with each parent is the best interests of the child. The Court takes children’s views and wishes into account, depending on their age and maturity. Children’s views are not as important as the best interests or safety of a child.

For example, if your child is very young and prefers to live with one parent because they can eat lollies and take away, their view may not be considered relevant. However, if your child is a mature teenager and says they prefer to spend more time with one parent because they enjoy living with their step-siblings and feel safer with that parent, their view may be very relevant to the Court.

More information about what the court takes into account when deciding parenting cases can be found here: https://www.fcfcoa.gov.au/fl/children/overview.

Can I move away from the ACT region with my children?

There is no simple answer to this question. If the other parent agrees to the children moving – the answer is yes. If there are Court Orders providing for the children to live with or spend time with the other parent and the move would impact on that arrangement – the answer is not without changing those orders – either by agreement or by going back to Court. If there is a parenting plan or an agreed arrangement that would be disrupted by the move, you should get legal advice on your options.

Moving away from the ACT is known as relocating. If you plan on relocating with your children, it is best if you can get the other parent’s agreement to this. This can be discussed in a mediation session at a Family Relationships Centre or at Relationships Australia. You may be able to suggest alternative arrangements for the children to see the other parent, eg, more time in the school holidays and to communicate regularly by phone, skype or email. If you can come to an agreement, you should put this in writing in a parenting plan or formalised as a Consent Order.

If you cannot come to an agreement about moving, you can apply to the FCFC for a Parenting Order for permission to relocate the children. The Court's decision will be based on what is in the children’s best interests. This decision may not be able to be made quickly – although the Courts’ will consider any circumstances that make it more urgent that there is a quicker decision.

If there are Court Orders about the time the children will spend with the other parent and the move will impact on this, the other parent can apply to the Court to enforce those orders if you move. This is known as a contravention application. A National Contravention List has been established to deal with all contravention applications filed in the FCFC. For more information on the National Contravention List and what documents and information must be filed see: https://www.fcfcoa.gov.au/fl/pd/fam-contravention. Note that you cannot electronically file a contravention application. The application, and any supporting documentation, must be filed by email to contraventionlist@fcfcoa.gov.au.

If there are no Court Orders about who the children live with and spend time with that will be impacted by the move, you may be able to move without having the other parents’ agreement and without going to Court. In some cases you may wish to make the move because of family violence. However, there is a risk that the other parent will apply to the FCFC for orders to locate the children and that you return the children to the ACT. The Courts may make orders for the return of the children on an interim basis until there has been a full hearing about whether relocation is in the children’s best interests. In some circumstances your decision to move the children without the other parents’ agreement can work against you in a later Court hearing, depending on the circumstances surrounding your move and the arrangements for the children prior to your move.

As this is a complex area you should seek legal advice before making a decision and before making any move to relocate the children from the ACT.

More information can be found here: https://www.fcfcoa.gov.au/fl/children/relocation-travel.

How do I stop my child being taken overseas?

By applying to the Court for an order preventing a passport from being issued to your child, or preventing a child from leaving Australia. If a Parenting Order has been made about a child, or someone has applied for a Parenting Order concerning the child, it is a criminal offence to take or send the child from Australia overseas. This will not be an offence where:

• The other party/parties to the Parenting Order have given authenticated written consent to the child being removed from Australia (either generally or in a particular way); or
• A court has made a Parenting Order which specifically allows the child to be removed from Australia (either generally or in a particular way).

The Court has the power to make a range of orders preventing children from being removed from Australia. If you are worried that your child may be taken overseas without your consent, you can ask the Courts to make orders about this. The Courts’ may make orders preventing an Australian passport being issued to your child, requiring a child’s passport to be delivered to the Courts, or requiring that a child be placed on the Airport Watch List. Being placed on the Airport Watch List means that when your child goes to leave Australia passport authorities are alerted and will stop your child leaving.

If necessary, the Courts can hear your application urgently. You should get legal advice about this as soon as possible.

More information about preventing your child from being taken overseas can be found here: https://www.fcfcoa.gov.au/fl/children/relocation-travel.

Can I change my child’s name?

Yes, if both parents consent, or if a Court order has been made to allow a child’s name to be changed by one parent.

You can also apply to change your child’s name if you are the only parent listed on your child’s birth certificate, or if you are the only surviving parent of your child. Otherwise, if you wish to change your child’s name without the consent of the other parent you will need to apply to the FCFC for orders allowing you to change your child’s name. The Court will only grant an order if a change of name is in the child’s best interests. However, you are allowed to call your child by a different name without legally changing their name (although you must use your child’s real name on legal documents). If the other parent is not happy with you using another name for your child, they might apply to the FCFC to restrain you from doing this.

If you have an order for sole parental responsibility you have the sole legal authority to make a decision about this and to change your child’s name. However, in practice this order is not always recognised by ACT Registration authorities who may require a Court Order that specifies that you can change your child’s name.

Your child can legally apply to change their own name once they turn 18.

Can children have their own lawyer?

Yes, the Court will sometimes appoint an Independent Children’s Lawyer in parenting cases.

The FCFC has the power to appoint an Independent Children’s Lawyer (ICL) under s 68L of the Family Law Act 1975. Any person, including a child, parent or an organisation concerned with child welfare, can apply to the Court to have an ICL appointed to ensure the Courts have the best evidence of what is in a child’s best interests. An ICL will consider any views of the child, but their role is to gather evidence and advise the court on what they think is in the child’s best interests, which may not always be consistent with the views or wishes of the child (s 68LA Family Law Act 1975).

An ICL is usually appointed where a child may be or has been exposed to neglect, abuse, family violence, serious mental health issues or high levels of conflict, in highly complex cases or where a child is mature enough to express their own views about the case.

More information about Independent Children’s Lawyers can be found here: https://www.fcfcoa.gov.au/fl/children/icl.

What if I think the other parent puts the children at risk?

For immediate concerns, contact the police. If you are concerned about risk when the children spend time with the other parent, inform Child and Youth Protection Services or the FCFC if you have current proceedings.

If you are concerned for a child’s immediate safety, you should contact the police for assistance. You should also inform Child and Youth Protection Services (CYPS) about any immediate, ongoing or potential risks to your child.

When starting proceedings in the FCFC, both parties will be required to complete a Notice of Child Abuse, Family Violence or Risk form. This form allows each parent to notify the Court whether the other party might put children at risk, including risk of abuse, neglect, family violence, exposure to drug or alcohol abuse and any other risks.

More information about the Notice of Child Abuse, Family Violence or Risk form can be found here: https://www.fcfcoa.gov.au/fl/forms/notice-cafvor.

What do I do if the other party has breached a parenting order?

You can attend FDR, or file a Contravention Application with the Court.

If you think the other party has contravened a Parenting Order, it may be helpful to attend a Family Dispute Resolution Service (FDR) to resolve the issue. You can also file a Contravention Application detailing the alleged breach to the FCFC. If you file a Contravention Application, you must also file an affidavit giving details of the breach and what you want the Court to do in response to the breach.

A National Contravention List has been established to deal with all contravention applications filed in the FCFC. For more information on the National Contravention List and what documents and information must be filed see: https://www.fcfcoa.gov.au/fl/pd/fam-contravention. Note that you cannot electronically file a contravention application. The application, and any supporting documentation, must be filed by email to contraventionlist@fcfcoa.gov.au.

It is a good idea to seek legal advice about whether another party has contravened an order, what your rights are and whether a Contravention Application is the best way to proceed. Sometimes the other party may have a reasonable excuse for breaching the orders, or the Court may excuse a very minor or accidental breach.

You can find more information about contravention of orders here: https://www.fcfcoa.gov.au/fl/pubs/compliance-parenting-orders.