AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The General Rule Under Australian law, each parent of a child has paren - tal responsibility for the child, unless a state or federal court has made an order altering the common law position. This is so regardless of whether the parents have separated, re-partnered or remarried. Each state and territory has separate laws about the status of children, which helps determine who is a par - ent of a child. In some situations, an application can also be made for a declaration of parentage under the federal Family Law Act 1975. Altering Parental Responsibility for Children The courts in each state or territory have jurisdiction to make orders about children under: • the relevant child protection legislation in each state or territory; • the relevant adoption legislation in each state or territory; • the relevant surrogacy legislation in each state or territory; • the parens patriae (or inherent jurisdiction) in the relevant court in each state or territory; and • the relevant status of children legislation in each state or territory. The federal government (through the Constitution) has the power to make laws with respect to marriage and the children of a marriage. In 1987, each state and territory referred the power to make laws with respect to children born outside of a marriage to the Common - wealth (federal government), meaning that the Fam - ily Law Act 1975 (Cth) governs all private family law disputes about children who are habitually resident or present in Australia. The exception to this is where an order has been made regarding parental responsibil - ity for a child under a state or territory child welfare law, and the relevant child protection authority has not consented to a parent or other person commencing or continuing proceedings under the Family Law Act.
In most cases, proceedings under the Family Law Act are commenced in the Federal Circuit and Fam - ily Court of Australia (FCFCOA) (Div 2) or the Family Court of Western Australia (where one or more of the parties reside in Western Australia). In some cases, proceedings under the Family Law Act may also com - mence in the local court in a state or territory. Definition of Parental Responsibility Parental responsibility in relation to a child is defined in Section 61B of the Family Law Act to mean all the duties, powers, responsibilities and authority held by parents in relation to children, by law. Provided it is safe to do so, and subject to any court orders, the parents of a child are encouraged to con - sult each other about major long-term issues in rela - tion to the child and, in doing so, to have regard to the best interests of the child as the paramount con - sideration. The term “major long-term issues” is defined in the Family Law Act to mean issues about the care, wel - fare and development of a child of a long-term nature, including (but not limited to) issues of a long-term nature about: • the child’s education (both current and future); • the child’s religious and cultural upbringing; • the child’s health; • the child’s name; and • changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. The FCFCOA can make parenting orders that deal with the allocation of responsibility for making deci - sions about major long-term issues in relation to the child. Parenting orders may provide for joint or sole decision-making in relation to some or all specified major long-term issues. If a parenting order provides for joint decision-making in relation to some or all major long-term decisions in relation to a child, such order requires each person to consult the other about the decision and to make a genuine effort to come to a joint decision, except to the extent that the order specifies. This does not,
10 C HILD RELOC AT I ON 20 26
CHAMBERS.COM
Powered by FlippingBook