Parental responsibility: what does it mean?
What is parental responsibility?
Parental responsibility means all of the duties, powers, responsibilities and authority which parents have in relation to their children.
Each parent of a child under the age of 18 has parental responsibility for that child. Importantly, this power is not affected where the parties separate and one or both repartner.
The court does have the power to reallocate the responsibilities of one or both parents pursuant to parenting orders.
How do the courts deal with parental responsibility?
If a parenting matter is brought before the court, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
What is equal shared parental responsibility?
Following on from major amendments to the Family Law Act (Cth) in 2006, it is presumed that each parent has ‘equal shared parental responsibility’. The purpose behind this presumption is to encourages positive co-parenting by giving parents an equal contributions in the long term decisions involving the child.
Where no parenting order or Court order exists, parents are presumed to have equal shared parental responsibility.
Those parents who do have equal shared parental responsibility must make a genuine effort to consult the other parent when making decisions involving major long term issues concerning the child.
When does the presumption not apply?
The presumption does not apply in the following circumstances:
- There are reasonable grounds to believe that a parent of the child has engaged in abuse of the child;
- There are reasonable grounds to believe that a parent of the child has engaged in family violence;
- On an interim basis, applying the presumption is inappropriate;
- Evidence is produced which establishes that it would not be in the best interests of the child.
There must be explicit and persuasive reasons why the presumption should be rebutted for the court to not consider applying the presumption.
Does the presumption apply to anyone caring for the child?
The presumption of equal shared parental responsibility applies only to the parents of the child. Although a person who is not a parent of the child can apply for parenting orders, the presumption that responsibility be shared equally applies only to a parent.
Do we need to make all decisions jointly?
If orders are made for equal shared parental responsibility for the child, you as a parent of the child are required to consult the other parent/person in relation to the decision to be made about the issue. You are both required to make a genuine effort to come to a joint decision about the issue.
What is considered a major long-term issue?
A major long-term issue is an issue about the care, welfare and development of a child of a long term nature. This includes issues of education, religion, health and the child’s name.
This is list in not exhaustive and other decisions, such as recreational activities and medical treatments such as seeing a counselor, may be considered major long-term issues.
If an order has been made for equal shared parental responsibility, do we have to have an equal care arrangement too?
Importantly, the presumption of equal shared parental responsibility relates only to the allocation of parental responsibility, NOT the amount of time the child should spend with each parent.
A court will not make an order for the child to spend equal time with both parents simply because they have made an order for equal shared parental responsibility.
The court is required to consider the following however if an order is made for equal shared parental responsibility:
- Whether the child spending equal time with each parent is in the best interests of the child;
- Whether the child spending equal time with each of the parents is reasonably practicable;
- Whether the child spending substantial and significant time with each parent would be in the best interests of the child;
- Whether the child spending substantial and significant time with each parent is reasonably practicable.
What does all of this mean for you?
If you are considering instituting proceedings in relation to parenting orders, the below flow chart will show you how parental responsibility is dealt with in the context of your orders:
