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 AUSTRALIA

SHARED PARENTAL RESPONSIBILITY

  On 1 July 2006, Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006 came into force.

  It dramatically changes Australia’s child custody law.

  •   It places an increased focus on the rights of children to have a meaningful relationship with both their parents and to be protected from harm.
  •   The law also encourages parents to equally share responsibility for their children, after separation.
  •   Most critically, the law sets forth a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  

  •   In Goode & Goode, [2006] FamCA 1346, the Family Court of Australia summarized some of the critical changes as follows:

 In summary, the amendments to Part VII have the following effect:

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).

3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s61DA(1) and s 61DA(3)).

4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

6. The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

(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 and 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.

8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

11. The child’s best interests remain the overriding consideration.

AUSTRALIA

CHILD RELOCATION

Reviewing Australia’s Family Law Amendment (Shared Parental Responsibility) Act 2006 leads to great concern that international (and domestic) relocation cases in Australia might become extremely difficult to win.
 

The Act creates a presumption that it is in a child's best interests for each parent to have equal shared parental responsibility. It requires the presumption to be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.
 

The statutory preference for shared parental responsibility will often conflict with the reasonable desire of a parent whose marriage is over to “go home” to her country of origin or to make a fresh start.
 

Assume that Australian Jack and American Jill meet on vacation in Fiji. Jack persuades Jill to join him in his place on the beach in Queensland. Jill has a child there but Jack doesn’t come home much and Jill desperately misses her family and friends back home in the States. She gets a job but it does not pay much while Jack goes on unemployment.
 

Jill’s Australian lawyer advises her that Jack has full rights to shared parental responsibility over the baby. Jill says that if she goes home to the U.S. she will be able to get a better job and will have the support of family and friends. Her lawyer explains that the fact Jack is not working actually helps his case because he has plenty of time to spend with the baby. While an Australian court has the power to decide that it is in the best interests of the child that her mother be allowed to relocate with her to the U.S., the statutory presumption in favor of joint parental responsibility could well tip the balance in favor of blocking relocation except in extreme cases.
 

Has the Australian legislation gone too far?
 

Will the Australian courts redress the balance?
 

In B & B [2006] FamCA 1207 (15 November 2006) the Full Court of the Family Court of Australia in Brisbane may have started that process. It upheld a decision allowing a mother to relocate with her children from one part of Queensland to another, over the strong opposition of the father. In its decision, the Court stressed that in relocation cases regard should be had not only to the best interests of the child but also to the right to freedom of movement of a parent. It described the relationship between the two concepts as “a delicate interplay of concepts.”
 

How that interplay works itself out in Australian relocation cases remains to be seen.

 

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