Australia: Changing the primary carer of the child

Last Updated: 4 February 2019
Article by Hayder Shkara

Stability and routine are important in a child's life, especially a young child, but sometimes the court decides that a big change is necessary, such as changing the child's primary carer.

The primary carer is the person with whom the child spends the most time. Most often, this is a parent.

The primary carer may have sole parental responsibility and the child may spend little to no time with their other parent, however, a primary carer can also share custody and have equal shared parental responsibility with the other parent.

Parental responsibility refers to the authority and decision-making responsibility a parent has over their child.

Changing the child's primary carer can result in a big upheaval – for both the child and the parent.

Often, for the sake of the child, the court will not choose to change a child's daily life so drastically. However, this is only if maintaining the status quo is in the child's best interests.

The Best Interests Of The Child

The best interests of the child are the court's most important consideration in parenting disputes.

Sometimes, changing the child's primary carer is necessary to uphold the child's best interests and keep them as safe and secure as possible.

The main considerations in determining a child's best interests are:

  • The benefit to the child of having a meaningful relationship with both of their parents
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This is found in Section 60CC of the Family Law Act 1975.

Of these two main considerations, the second one is accorded greater importance than the first.

Therefore, although changing the child's primary carer means changing the relationship they will have with one or both of their parents, it is always done to protect the child from physical and psychological harm.

Although having a meaningful relationship with both parents is ideal, the court works first and foremost to keep children safe.

There are additional factors taken into consideration when determining the child's best interests and deciding whether changing the child's primary carer is the best option. These include:

  • The child's own views
  • The nature of the relationship between the child and each parent
  • The likely effect of any changes to the child's circumstances
  • The capacity of each parent to provide for the child's physical, emotional and intellectual needs
  • The child's right to enjoy Aboriginal or Torres Strait Islander culture if the child is of Aboriginal or Torres Strait Islander descent
  • The extent to which each parent has fulfilled, or failed to fulfil their obligations to maintain the child
  • Any other fact or circumstance that the court thinks is relevant

The consideration of the child's views is dependent upon their age, maturity and level of understanding of the events.

The court may appoint an independent children's lawyer to represent the best interests of the child in court. The independent children's lawyer (ICL) may offer recommendations, however, the court is not obliged to follow these.

When Is Changing The Child's Primary Carer A Good Idea?

Ryder & Donaldson 2018

A case heard in the Family Court in Brisbane last month was an appeal against changing the primary carer of a five-year-old child.

In 2017, the trial judge had determined that the child should now live with the father after the mother had custody since the parents' separation in 2014.

The mother's appeal against this decision was dismissed as the appellate judge found that changing the child's primary carer was in his best interests.

Details Of The Case

The mother, Ms Ryder, and the father, Mr Donaldson, were in a relationship for a short period of time before separating in August 2014. Their son was then just over one year old.

Ms Ryder and Mr Donaldson agreed that the mother would be the primary carer, but the mother soon began refusing to let the father see their child.

From October 2014 to June 2015, the father did not see the child at all.

After this period, orders were made by consent to allow Mr Donaldson to spend time with his son, while Ms Ryder remained the primary carer.

However, Ms Ryder did not comply with these consent orders.

The mother alleged that the father had sexually abused the child and that he was at continued risk of sexual abuse in the father's presence.

In 2016, the mother made audio recordings of the child and kept notes. She said that the child displayed excessive fear, panic and trauma behaviours at night time.

The trial judge did not find that the child had been sexually abused by the father, nor was she satisfied that the child was at risk of being abused.

The judge cited insufficient evidence.

If the child stayed in the care of the mother, the judge said, he will grow up believing that he had been molested by his father and will have no relationship with the father at all.

In this initial hearing, the independent children's lawyer argued against changing the child's primary carer.

The family report writer stated that changing the child's primary carer would at first be traumatic for him, but that he would recover without permanent risk to his emotional and psychological development.

The trial judge made orders for the child to live with the father, who would also have sole parental responsibility.

The mother's time with the child began as supervised time for six months, before unsupervised time which will eventually extend to regular weekends, Wednesday afternoons and half of each school holidays, beginning this year.

The mother appealed against these orders, however, the judge in December 2018 dismissed this appeal.

The change in primary carer was considered to be in the child's best interests as it allowed him to benefit from a relationship with both parents while protecting him from harm.

The primary judge found the risk to the child's relationship with his father to be too great, should he stay in the mother's care, and the appellate judge upheld this decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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