Australia: Major long-term issues - for children of separated parents

Major long-term issues are the big decisions that parents have to make about their children's lives.

All types of parents make all types of decisions for and about their children every day, but Australian family law legislation recognises that some decisions about bigger issues are more important than others.

This becomes especially clear when parents separate or divorce. They still have a responsibility towards their children and must make decisions for their children, but the major long-term issues can get a bit harder. In some cases, this leads to parents disagreeing about how their children should be brought up.

Major long-term issues are often the subject of Family Court proceedings, where they affect determinations of parental responsibility and the best interests of the child.

What Are Major Long-Term Issues?

Major long-term issues are distinct from day-to-day issues in that they have a significant effect on the child's care, welfare and development.

They are defined in Section 4 of the Family Law Act 1975 and include, but are not limited to, the following issues:

  • Education
  • Religious upbringing
  • Cultural upbringing
  • Health
  • Name
  • Living arrangements that would make it significantly more difficult for the child to spend time with a parent

Decisions regarding major long-term issues might include what sort of school the child will go to, to what extent they will be part of a religious community, whether the child will relocate with a parent and changing their first name or surname.

When parents are in a relationship, they usually make these decisions together. After separation or divorce, whether they decide on major long-term issues together depends on how parental responsibility is shared.  

Major Long-Term Issues And Parental Responsibility

Parental responsibility is the duty and authority a parent has concerning the care, welfare and development towards their child.

This responsibility does not end when two parents end their relationship. Each parent has a duty to continue caring for their child or children following separation.

Family law presumes equal shared parental responsibility when making any determination concerning children.

Equal shared parental responsibility means that the parents both have the authority to make decisions regarding their child and that they must make these decisions together by consulting with each other and coming to an agreement.

For some of these decisions, reaching a consensus may not be too difficult. But for other major long-term issues, parents may have quite different opinions.

If they cannot come to an agreement, they may attend a family dispute resolution service, where a third party can assist them in resolving the issue.

If there is no agreement following family dispute resolution sessions, the parties can make an application for parenting orders. This means that the court decides the outcome of the dispute.

The court has the authority to make orders on the division of parental responsibility.

More parental responsibility may be given to one parent than the other, or one parent might have sole parental responsibility.

A parent with sole parental responsibility does not need to consult with their former partner about major long-term issues and can make all decisions themselves.

Because there are so many kinds of major long-term issues, the court can order that one parent has sole parental responsibility in one area only.

For example, one parent may be given sole parental responsibility regarding the child's education. Therefore, they do not need to reach an agreement with the other parent when deciding on the child's schooling, although they may need to advise the other parent of their decision.

When the court is determining the outcome of a parental dispute regarding major long-term issues, they make their decision based on the best interests of the child.

Best Interests Of The Child

In a disagreement over major long-term issues, both parents believe that they are acting in their child's best interests.

When the dispute becomes a court hearing, it is up to the court to decide what the child's best interests are and which option presented by the parents better promotes their best interests.

There are two primary considerations when determining the best interests of a child. These are:

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect the child from physical and psychological harm due to exposure to abuse, neglect or family violence

Of these two considerations, the second one is given more weight. If maintaining a relationship with a parent exposes the child to harm or the risk of harm, the court will not make an order in that parent's favour.

The court may appoint an independent children's lawyer (ICL) to the case to provide an impartial assessment of the situation and the child's best interests and to make recommendations.

Case Example

Pavli & Beffa 2013

This Family Court case from 2013 shows how the court may make orders regarding parental responsibility and major long-term issues.

In this case, the parents, Ms Beffa and Mr Pavli, sought consent orders for shared parental responsibility of their then seven-year-old child. However, they sought orders that would allow the mother to ultimately make the decision on major long-term issues if both parents were unable to agree.

This makes the case one that partly concerns shared parental responsibility and partly concerns parental responsibility.

It is not a case of sole parental responsibility, as parental responsibility does not rest exclusively with one person.

According to the judge's final orders, the parents have shared parental responsibility in relation to major long-term issues regarding the child's name and changes to the child's living arrangements.

For all other major long-term issues, regarding the child's current and future education, health and religious and cultural upbringing, the mother has parental responsibility on the condition that she consult with the father and that they make a genuine effort to come to a joint decision.

In the instance that no agreement is made, the mother has 14 days in which to make the final decision and advise the father of it in writing.

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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