When a couple separates and there are children involved, it is important to note that there is no rule that gives parents equal shared custody of the child. Under section 63B of the Family Law Act, parents are encouraged to come to a mutual informal agreement by way of a parenting plan which will usually set out living arrangements for the child.


Family Dispute Resolution


If an agreement between the parents cannot be reached, parties are required to attend family dispute resolution, which hopefully enables the agreement to be reached. Such agreement could then be drawn up in a parenting plan, or formalised and made legally binding by way of consent orders. It should be noted that a parenting plan is not legally binding and cannot be enforced if one party decides to breach it. If agreement cannot be reached either informally or through mediation, the option of applying for parenting orders with the Court is open to parents. It should be noted that while the Court in most cases will require parties to attempt to mediate a solution themselves, via Relationships Australia or through private lawyers, there are some circumstances under section 60I of the Family Law Act where dispute resolution is not required, such as in circumstances of significant family violence or when there is a genuine risk of abuse to the child.


Court Order


Once family dispute resolution has occurred and a genuine effort has been made to resolve the dispute, a parent may seek a parenting order in relation to whom a child is to live with under section 64B of the Family Law Act. For more information on parenting orders and who can apply for them please see our previous post here.

The court will then apply a three-step assessment to determine the parenting order:


1. Child’s best interest


Under section 60CA of the Family Law Act, in determining whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child. The primary considerations the court will give to determining a child’s best interest is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm, with greater weight being given to the protection of the child.

For example, in M&M[1] it was determined that the father should not have access to the child based on the possibility that the father had sexually abused the child and that it was in the best interests of the child to eliminate that potential risk.


The court will also consider:

  • any views expressed by the 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 nature of the relationship of the child with both of their parents;
  • the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child;
  • the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent, another child, or person the child had been living with;
  • the capacity of the parent to provide for the needs of the child;
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks is relevant; and
  • any family violence involving the child or members of the child’s family.







2. Equal Shared Parental Responsibility


The court does apply the presumption, under s 61DA(1) of the Family Law Act, that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption will not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence and it may not apply if one parent has substance abuse problems that they are struggling with. This presumption may also be rebutted by the factors considered by the court in step 1.



3. Determining the appropriate care arrangements


If the equal shared parental responsibility presumption has not been rebutted, the court will then consider whether the child shall spend equal or substantial and significant time with each parent. The court will consider what is in the best interests of the child and what is reasonably practicable. This may be a consideration of how far apart the parents live from each other, the parent’s current and future capacity to implement arrangements for the child, their ability to communicate and the impact of the arrangements.

Even if the presumption of equal and shared presumption is rebutted, the court confirmed in Goode & Goode[2] that they would still consider whether any time with the other parent is in the best interests of the child. In some cases, supervised contact with one parent may be ordered for a time when the Court has concerns about the capacity of that parent to look after their child.






Nicola Maltman – Law Clerk – Matthies Lawyers

Thus should you have any queries in regard to family law matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.


[1] M & M (1988) 166 CLR 69.

[2] Goode & Goode [2006] FamCA 1346.