Family Law Act 1975 - Children

Children

The Act has been designed to apply to all matters regarding the custody and welfare of children in Australia, regardless of the relationship between the parents. The relevant provisions are found in Part VII of the Act, which were amended significantly in 1995 and again in 2006.

Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labeled 'residence' and 'contact' respectively). Although the term custody often refers to where children live, the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order (s61C).

Parental responsibility is the ability to make decisions that affect the day-to-day and long term care and welfare of the child, and can include things such as what school they attend and what their name is.

The Act does not specify that the person with whom the child is to reside or spend time with must necessarily be their natural parent, and provision is made under section 65C for anyone 'concerned with the care, welfare or development of the child' to apply to the Court for orders. In all proceedings, the paramount consideration is the 'best interests of the child', and the Court will not make an order that is contrary to these interests (section 60CA).

If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children (section 61DA). In practical terms this means that parents must consult one another about major decisions affecting the care of children (but not day to day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of family violence or there has been any abuse (including sexual abuse) of a child, a parent or any family member living with the child.

There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been mitigated, the Court must consider allocating it. If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead (section 65DAA).

Substantial and significant time includes weekends, weekdays, special days and holidays, and in practical terms usually means more than every second weekend

The basis on which who the child lives with and spends time with (and how much time is spent) is determined firstly with reference to the best interests principle under section 60CA. What is in the child's 'best interests' is determined with reference to the primary and secondary considerations found under section 60CC, and it is by reference to these factors that argument proceeds in the Federal Magistrates and Family Courts. Full custody (a 'live with' order) will usually be awarded to the parent who is better able to demonstrate that they can meet the child's best interests.