A primary carer in family law is the person with whom the child spends the most time with. Most often, this is a parent, however, a primary carer can also be a child’s grandparents, aunts, and uncles.
In some parenting matters, the court may need to assess who a child’s primary carer is as this may assist the court in determining what parenting orders are to be made. For example, in determining what parenting orders are in the best interests of children, the court may need to first consider whether there should be an equal time arrangement. If yes, this obviates the need to determine who should be the primary carer.
If an equal time arrangement is not possible, then the court must determine who should be the primary carer, and whether it is in the best interests of the children, and reasonably practicable, for the other parent to have substantial and significant time with the children.
If substantial and significant time is not possible, then the court ought to determine what arrangement will ensure the maximum involvement of both parents in the children’s lives consistent with the best interests of the children.
How do courts assess who is a child’s primary carer?
In deciding who should be the primary carer, the court makes reference to the considerations set out in section 60CC of the Family Law Act (Cth) 1975, which details how a court determines what is in the best interests of a child. The Family Court will change who a child’s primary carer is if that is what in the best interests of the child. The primary considerations for the court as set out in section 60CC (2) are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In relocation cases, the court may also assess who a child’s primary carer is in determining whether the child’s relocation with the primary carer and away from the non-caring parent will be in the best interests of the child. Please not that in Family Law non-caring does not mean careless or ‘unaffectionate’, as it does in the everyday sense of the word.
In Fliss v Kierson & Anor  FamCA 101, the court allowed the paternal grandmother who had been the primary carer of the child for 5 to 6 years to relocate to Sydney whilst the mother continued to live in Queensland. In coming to this decision, the court took into account what would have been in the best interests of the child and stated that it would be particularly damaging for the child to be removed from the care of the paternal grandmother.
As the best interests of the child are the paramount consideration in Family Law proceedings, the court will also not hesitate to make orders for a child to be removed from the care of the primary carer where it is in the best interests of the child to do so. In Donaghey v Donaghey (2011) 45 Fam LR 183, the court found that if the child were to continue living with the mother then the child would suffer psychological harm. The court acknowledged that a move from the mother’s care into the father’s full-time care would involve a series of changes of real significance (change of primary nurturer, concomitant separation from his erstwhile primary carer and nominated “best friend”; change of locality; change of school), however, the court still found that it was in the best interests of the child for him to live with his father in order to protect the child from psychological harm.
In deciding on whom was to be the primary carer for a child, the court in Ryder & Donaldson  FamCAFC 260 stated that there was an unacceptable risk of harm to the child if he continued to live with the mother. This risk required a change of primary residence and a period of supervised time to allow the child to build a relationship with the father and to break the cycle of harm, followed by a reintroduction of unsupervised time with the mother so that hopefully the child would end up with a meaningful relationship with both parents, as opposed to the continuation of the status quo where the child could not have a meaningful relationship with his father.
From the above, it can be seen that the Family Court will be in a position to change who a primary carer is and to assess who a primary carer is in a child’s life if that will assist the court in making a decision that is in the best interests of the child. The court will not hesitate to make a decision that results in a child’s primary carer changing if this is what will be in the best interests of the child.
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