AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
however, require any other person (eg, a doctor or teacher) to establish that a particular decision about a child has been made jointly. If a child is spending time with a person under a parenting order, that person is not required to con - sult a person who has parental responsibility for the child about any decision they make while the child is spending time with them that is not a major long-term issue, unless an order provides otherwise. A person who is not a parent (for example, a grand - parent or another person concerned with the care, welfare or development of the child) can apply for, and be granted, parental responsibility for a child. In parenting proceedings, the decision about who should have parental responsibility for a child is sepa - rate to the decision about who the child should live with, or who they should spend time with. Whilst it is common for the person with whom a child lives to hold sole or joint parental and decision-making responsibil - ity for the child, it is not uncommon for an order to be made that a child spend time with a person who does not hold any aspect of parental or decision-making responsibility. Court Considerations When Making Orders About Parental Responsibility When considering an application for a parenting order, the court is required to determine what orders are in the best interests of the child, taking the following fac - tors into account: • what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not that person has parental responsibility for the child); • any views expressed by the child; • the developmental, psychological, emotional and cultural needs of the child; • the capacity of each person who has or is pro - posed to have parental responsibility for the child to provide for the child’s developmental, psycho - logical, emotional and cultural needs;
• the benefit to the child of being able to have a rela - tionship with the child’s parents and other people who are significant to the child, where it is safe to do so; and • anything else that is relevant to the particular cir - cumstances of the child. If the case involves an Aboriginal or Torres Strait Islander child, additional matters must be considered. 1.2 Requirements for Birth Mothers A child’s gestational (or birth) mother will have parental responsibility for the child when they are born, wheth - er or not the child is biologically related to them. Each state and territory has separate laws about the status of children, and sets out presumptions of par - entage that apply in situations where a child is born following an artificial conception procedure. The Fam - ily Law Act recognises the presumptions of parentage that are made under state and territory law, and also sets out who is a “parent” of a child born as a result of an artificial conception procedure, for the purposes of the Act. As set out in 1.1 Parental Responsibility , a birth moth- er’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court. 1.3 Requirements for Fathers A child’s biological father will have parental respon - sibility for the child when they are born, unless the child was born as a result of an artificial conception procedure and they are not the parent under state or territory law, or a provision of the Family Law Act. Please see 1.4 Requirements for Non-Genetic Par- ents regarding children born as a result of an artificial conception procedure. If there is an issue as to the child’s parentage, and the provisions of the Family Law Act in relation to artificial conception procedures and surrogacy do not apply, a declaration of parentage can be sought. It is important to note that there is no definition of “parent” in the Family Law Act. In Ophoven & Berzina [2025] FedCFamC1A 97, the court held that there was
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