Parental Responsibility

divorce law

What is Parental Responsibility?

In the family law context, parental responsibility refers to "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children." Importantly, although a common misconception, parental responsibility does not refer to time children spend with each parent or relevant party. Rather it is a responsibility to make all decisions necessary to ensure a child's needs are satisfactorily met. The category of what these "needs" refers to is not closed but includes:

  • Health;
  • Education;
  • Religion;
  • Child's name;
  • Social issues including conduct and interaction;
  • Protection from harm;
  • Passports;
  • Where the child lives and who they spend time with.
  • FAMILY LAW ACT S61B - parental responsibility

    Who Holds Parental Responsibility?

    As a birth every parent of a child under the age of 18 years holds parental responsibility for their child, subject to any orders made by the court. This rule does not require that parents share parental responsibility or make joint decisions. Nor does it provide that one parent has a greater responsibility than the other.

    How the Court can vary parental responsibility

    The court holds the power to vary the parental responsibility both parents hold as they are able to make enforceable orders allocating parental responsibility. For example, the court may order that a parent holds sole parental responsibility or they may order that the parents hold equal shared parental responsibility. The court is required to consider the issue of parental responsibility whether or not the parties are seeking such an order. Equal shared parental responsibility means that in regard to decisions about major long-term issues relating to the child parents must consult with each other and make a genuine effort to come to a joint decision about the relevant issue. An order for sole parental responsibility means the parent/party whom the order is made in favour of may make unilateral decisions about the child without consulting the other parent.

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    Difference between court-ordered and naturally occurring parental responsibility

    The key requirement that arises from court ordered equal shared parental responsibility is that, prior to making major long-term decisions relating to the child, parents must consult with each other and make a genuine effort to come to a joint decision about the relevant issue. There is no obligation (although there may be an expectation) for parents to consult with one another if no orders have been made displacing the natural allocation of parental responsiblity pursuant to s61C of the Family Law Act.

    Presumption of equal shared parental responsibility

    The Family Law Act 1975 (Cth) (the act) provides a presumption that it is in the best interests of the child for the child's parents to have equal shared responsibility for the child. Importantly this presumption only applies in relation to parents of a child. However, this does not preclude other persons entitled to apply for parenting orders to seek orders as to parental responsibility. It simply precludes the presumption being applied to them.

    Thereby the starting point for any family law parenting matter is that the court will likely order that the parents have equal shared parental responsibility, unless the presumption does not apply. This presumption will not apply where there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

      (a) Abuse of the child or another child who, at the time, was a member of the parent's family or that other person's family); or
      (b) Family violence.

    Impact of an order for equal shared parental responsibility

    Where the court makes an order that the parents have equal shared parental responsibility they must then consider whether the children spending equal time with each parent would be:

      (a) In the best interests of the child;
      (b) Is reasonably practicable;
      (c) If it is, consider making an order to provide for the child to spend equal time with each of the parents.
    Should the court consider that equal time is not suitable they then must consider whether the child spending substantial and significant time with each parent would be:
      (a) In the best interests of the child;
      (b) Is reasonably practicable;
      (c) If it is, consider making an order to provide for the child to spend substantial and significant time with each of the parents.

    Joint decisions?

    Parties to an order for equal shared parental responsibility are not required to establish, before acting on a decision about the child communicated to the other party, that the decision has been made jointly.

    Option not to make a parental responsibility order

    Where the court does not make an order as to parental responsibility, section 61C of the act will continue to operate to the effect that each parent continues to hold parental responsibility for the child.

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    substantial and significant time

    A child will be taken to spend substantial and significant time with a parent only if:

      (a) The time the child spends with the parent includes both:
      (i) Days that fall on weekends and holidays; and
      (ii) Days that do not fall on weekends and holidays; and
      (b) The time that the child spends with the parent allows the parent to be involved in:
      (i) The child's daily routine; and
      (ii) Occasions and events that are of particular significance to the child; and occasions and events that are of special significance to the parent.

    is equal time reasonably practical?

    In determining whether it is reasonably practical for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

      (a) How far apart the parents live from each other; and
      (b) The parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the child's parents; and
      (c) The parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
      (d) The impact that an arrangement of that kind would have on the child; and
      (e) Any such other matters as the court considers relevant.

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    When throughout your matter will the court make orders as to parental responsibility?

    The court holds the discretion to make orders as to parental responsibility at any stage throughout the proceedings. However, the court will usually set aside parental responsibility as a final matter rather than an interim matter. This is on the basis that, for example, where there are allegations of family violence the truth of which cannot be determined at this stage in the proceedings, the court will await the findings at the final court hearing rather than make orders without being able to ascertain whether they are in the best interests of the children.

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    Interim orders - no influence on final orders

    Simply because the court makes a parental responsibility order at the interim stage does not mean they will make the same order at the final hearing. At final hearing they will again consider the evidence and must disregard the order for parental responsibility made at the interim stage. For example, the court may order that a parent has sole parental responsibility at interim hearing, but then at final hearing order that the parents have equal shared parental responsibility.

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