Court-based parenting outcomes

Section 61DA FLA and Section 70A FCA provide that, when making a parenting order, 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 (Section 65DAC FLA and Section 89AC FCA). The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person living with a parent) has engaged in child abuse or family violence. The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the best interests of the child. Where the presumption applies, the court must also consider ordering “equal time” or “substantial and significant time” with each parent where it is reasonably practicable and in the best interests of the child (Section 65DAA FLA and Section 89AA FCA).

In addition to the primary considerations of the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, there are a number of additional considerations the court needs to look at when determining what is in the child’s best interests. These include things such as the nature of the relationship between the child and his/her parents, the likely effect of changes in circumstances, the parent’s capacity to provide for the needs of the child (including emotional and intellectual needs) and several additional factors outlined in s 60CC(3) of the FLA and s66C of the FCA. Section 60CC(3)(k) provides that in the event that a family violence order applies, or has applied, to the child or any member of the child’s family, any relevant inferences that can be drawn from the order need to be taken into account.

Research indicates that children who are exposed to domestic and family violence may be significantly harmed.

Concerns may be sufficient to warrant an order for supervised changeovers and/or time; and a specified contact centre may be considered appropriate to provide the necessary supervision to lessen the risk of exposure to family violence. In cases where there is a risk of serious harm to the child or the primary caregiver, the court may decide that sole parental responsibility is more appropriate than trying to preserve an ongoing co-parenting relationship. The Court may also consider making an order that the child spend no time with the parent who inflicts family violence.

In addition to addressing the risk of ongoing domestic and family violence and associated safety concerns, there may be other related considerations for judicial officers when making a parenting order. For example, a judicial officer may need to consider the extent to which ongoing conflict and violence between parents affects either parent’s capacity to care for the child, or whether it is appropriate to make provision for support to be given during contact to a parent who may be coping with the effects of substance misuse, mental illness or domestic and family violence.

Further, in order to determine those arrangements that will best support the child within their unique developmental context, a judicial officer should consider matters relevant to the child’s age and developmental stage. In making this determination, a judicial officer may give weight to recommendations made in a court-ordered Family Report or other court-ordered expert report, or to submissions made to the court by an Independent Children’s Lawyer (ICL). Research has identified the need for ICLs to be well trained; and to have the necessary skills to communicate with children and to understand and respond to their experiences of domestic and family violence and child abuse.

The Family Violence Best Practice Principles comprehensively deal with the range of considerations that are likely to be important in framing orders at interim and final hearing stage in cases where there are disputed allegations of domestic and family violence and child abuse.

In some cases where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer or order a Family Report or expert report to determine what is in a child’s best interests.

Where an application is made to the Federal Circuit and Family Court of Australia or the Federal Circuit Court of Australia for a parenting order by consent, the parties must formally advise the court whether any allegations had been made in the proceedings of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol, serious parental incapacity or any other allegation involving a risk to the child concerned AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk if family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of the FCFCA Rules).

There has been reported confusion among parents about the meaning of equal shared parental responsibility, some believing that it is the equivalent of equal-time. Research has shown that where domestic and family violence continues after separation, in particular where there are ongoing attempts to exercise control in parenting arrangements, some mothers feel pressured by their former partners/the fathers of their children into agreeing to equal-time, believing that the court would require it. A 2015 study of separated parents conducted by the Australian Institute of Family Studies reports an increase in the number of children of parents with domestic and family violence and safety concerns having only daytime contact with the alleged perpetrator of family violence.