Parental status

In general, ‘parent’ means the biological or adoptive parent of a child. However, this general rule may be overturned by presumptions of parentage applying in specific circumstances, such as where children are conceived by artificial conception procedures or surrogacy arrangements. 

The Court will also presume parenthood from prescribed supporting evidence (such as a birth register or written acknowledgment), though these presumptions can usually be rebutted.  

Parental status can be of great importance in parenting disputes as many of the considerations to be taken into account in determining a parenting order only apply to a child’s parents. The law also attributes certain duties to parents, such as the duty to maintain a child. 

Parental responsibility

The notion of parental responsibility involves all the duties, powers and responsibilities that parents have in relation to their children at law. It includes the right to make long-term decisions concerning the welfare of the child. Parents are presumed at law to have shared parental responsibility.

In a parenting dispute, the Court will presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless this is rebutted by evidence or there are reasonable grounds to believe that a parent (or someone living with them) has engaged in child abuse or family violence.

The issue of parental responsibility is significant not just in its own right, but also because where equal shared parental responsibility is granted, the Court will be required to consider ordering that the child spend equal, or substantial and significant, time with the parties unless this is not reasonably practicable or in the child’s best interests.

Parenting orders

Parenting orders are orders made under Part VII (Children) of the Family Law Act. They commonly deal with matters such as the person(s) the child will live with, the time he or she will spend with another person(s), and the allocation of parental responsibility for a child.

In deciding whether or not to make a parenting order, the foremost consideration for the Court is the child’s best interests. The Family Law Act outlines various principles and factors for the Court to take into account in determining what is in the child’s best interests. The ‘primary considerations’ prescribed by the Act are the benefit to the child of having a meaningful relationship with both parents and the need to protect him or her from harm arising from exposure to abuse, neglect or family violence. Other considerations include any views expressed by the child and any factors (such as the child’s maturity) that the Court thinks relevant to the weight it should give to the child’s views.