Throughout my time as a Family Lawyer I have seen family law judges, whether they are from the Family Court or the Federal Circuit Court, refer to “parental capacity” in almost all parenting matters. What is this, and how does this affect your case?

Pursuant to the Family Law Act, judges are required to consider what is in the best interests of the child, and in this regard, parental capacity or simply the capacity to parent, is certainly relevant. It impacts on every decision that is made, and every aspect of care for a child.

Parental capacity is not something that can fit into a box as every family and situation is different, this is always being changed to fit the situation, but there are some aspects that are relevant most of the time:

  1. Simply – can you get your child to school? To the doctor when needed? To the dentist?  Often this is asked, not to show issues in the relationship as much as show how you are able to get through the difficult tasks as a parent, such as these, and “parent” the child. We are often told of parents who can’t get their young child to contact, as the child doesn’t want to go. This is always concerning. It may show an issue with capacity as parenting is not just getting children to do what they want, but what is necessary for their long term best interests. We often hear judges say something like “If your child doesn’t want to go to school/the dentist/the doctor, do you make them?”. Almost all parents will become shocked by this, and say something like “of course”. The judge then goes on to ask “then why can’t you get the child to time with the other parent?” Time with the other parent, and the need for a young child (usually under 14 years) to attend, is a parenting decision. It is not up to a child to determine whether they should go or not. It is mostly accepted that all children should be spending time with the other parent (unless there is a substantial risk to their safety).

There is of course the other side of the coin, if a parent strongly believes that the child is at immediate risk in the other parent’s care, particularly if there is evidence of the risk, then the capacity changes – it is then incumbent upon the parent to protect the child, and if time has to stop, or be supervised, then action should be taken for that to occur. In these circumstances it may be the courts view that a parent not exercising this protection does not have capacity. In these circumstances it is necessary for you to contact your solicitor for advice, and we recommend you do so quickly.

  1. Ability to provide for the intellectual and emotional needs of the child. As each child is different, the answer as to whether this is occurring or not is different. Generally, can you make sure that their emotional safety is maintained? Can you provide your child with the permission to have a good time and relationship with the other parent? This is really important as children sometimes have concerns about loyalty to one or other parent. I recall seeing on Oprah many years ago, where she said something like “don’t denigrate the other parent in front of or to the child, that child is, after all, made up of half of the other parent”. Simply put, most parents would look at capacity to parent as raising the child up, and not denigrating a child to the child (or anyone really).
  1. The inability of a parent (or parents) to put the child’s needs above that of the parental dispute. Most parents who have separated have times of dispute, whether that is a short term matter or more lengthy it is always hard. The dispute can occur in front of children, or close enough to the children for them to pick up on it. The parents (and children) are all dealing with the grief over the separation, and loss of the future of the relationship. It is a difficult time, with the most important thing being the removal of the dispute from the line of sight of the children as much as possible. It may also be worthwhile considering whether you need some psychological support or the children do, and there are many psychologists and counsellors, or other health professionals available to assist.

Capacity to parent is not static, it changes and grows with experience and understanding. It is okay to not have it entirely right. It is important that a child’s relationship with the other parent is actively encouraged and permitted. The capacity to parent depends on the circumstances of your matter, both parent’s ability to communicate and safety of the child.  The capacity to parent changes from when you are in the relationship compared to after separation.

It is always a good idea to obtain legal advice on the aspects of parental capacity that are relevant to your particular case, and you can be assured that it is very likely, the judge (if your matter ends up in Court) will discuss this at some time during your matter.