The Role and Rights of a Primary Carer in Australia: What You Need to Know
Stability and routine are essential in a child’s life, especially for a young child. Still, sometimes the court decides that a significant change is necessary, such as changing the child’s primary carer.
This is a drastic course of action and you will normally need the assistance of a lawyer specialising in child custody to assist you in this endeavour.
The primary carer is the person the child spends the most time with. 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 parental responsibility with the other parent.
Parental responsibility refers to a parent’s authority and decision-making over their child.
Changing the child’s primary carer can result in significant upheaval for both the child and the parent.
Often, for the child’s sake, the court will not change a child’s daily life so drastically. However, this is only true if maintaining the status quo is in the child’s best interests.
What is a Primary Carer?
In Australian law, a primary carer is an individual who takes on the most substantial role in providing daily care and nurturing to a child.
It generally refers to the parent or guardian who spends the most time caring for the child, meeting their needs, and addressing their well-being daily.
The primary carer is critical in a child’s life, providing emotional support, physical care, and stability.
Who Is the Primary Carer for a Child?
The term “primary carer” refers to the person who provides the most informal care for a child. This typically means they are responsible for the child’s day-to-day needs, such as feeding, bathing, clothing, helping with homework, and attending to their emotional needs.
Sometimes, the primary carer can be either the mother or the father or a grandparent or guardian. In family law and separation, the primary carer is often the parent with whom the child spends most of their time.
However, it’s important to note that the law encourages shared responsibility where it’s in the child’s best interests. Determining who the primary carer is can play a role in family law matters, such as child custody and child support disputes.
How to Become the Primary Carer of a Child
In Australia, if parents cannot agree about who should be the primary carer of a child, it may be necessary to apply to the Family Court or Federal Circuit Court for parenting orders. The court’s paramount consideration when deciding who the child should live with is the child’s best interests.
The court considers a range of factors when determining a child’s best interests, including:
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect, or family violence
- The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs
- The child’s views, considering factors such as the child’s maturity and level of understanding
To become the primary carer, it’s essential to demonstrate your capacity to provide a stable, supportive, and loving environment for your child.
Primary Carer Responsibilities
Under Australian law, the primary carer carries several responsibilities:
- Providing for the child’s daily needs: This includes providing healthy meals, ensuring hygiene, providing a safe and comfortable living environment, and managing the child’s daily routine.
- Supervising the child’s education: The primary carer must ensure regular attendance, assist with homework and participate in school activities such as parent-teacher meetings.
- Managing the child’s health care: This includes scheduling and attending medical appointments, ensuring any prescribed medication is taken, and addressing any health concerns or needs.
- Supporting the child’s emotional needs: This involves offering emotional support, guidance, and comfort and fostering a nurturing and stable environment for the child.
- Encouraging social development: This involves supporting the child in developing and maintaining friendships and social activities.
Being a primary carer, while demanding, is a vital role that significantly impacts the child’s development and future well-being.
The Best Interests Of The Child
The court’s most important consideration in parenting disputes is the child’s best interests.
Changing the child’s primary carer is sometimes necessary to uphold the child’s best interests and keep them as safe and secure as possible.
The primary 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 of 1975.
Of these two primary considerations, the second one is more important than the first.
Therefore, although changing the child’s primary carer means changing their relationship with one or both 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.
Additional factors are considered when determining the child’s best interests and 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
Considering the child’s views depends upon their age, maturity, and understanding of the events.
The court may appoint an independent children’s lawyer to represent the child’s best interests. The independent children’s lawyer (ICL) may offer recommendations. However, the court is not obliged to follow them.
Changing The Child’s Primary Carer
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 determined that the child should now live with the father after the mother had 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 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.
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 the child displayed excessive fear, panic and trauma behaviours at night.
The trial judge did not find that the father had sexually abused the child, 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 would grow up believing that his father had molested him and would 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 ordered the child to live with the father, who would also have sole parental responsibility.
The mother’s time with the child began as a supervised time for six months before unsupervised time, which will eventually extend to regular weekends, Wednesday afternoons and half of each school holiday starting this year.
The mother appealed against these orders. However, the judge in December 2018 dismissed this appeal.
The change in primary care was considered 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.
Unsure About Your Rights as the Primary Carer of a Child in Australia?
At Justice Family Lawyers, we offer expert guidance, helping you understand your rights and responsibilities as a primary carer.
Don’t tread these waters alone. Contact us today, and let us assist you in ensuring the best outcome for you and your child.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.