For the purposes of family law in Australia, anyone who is the parent of a child under the age of 18 years is said to have ‘parental responsibility’ for that child, even if the relationship arises through adoption. The responsibility remains regardless of any change in the relationship between the child’s parents, such as marriage, re-marriage, separation, or divorce.
‘Parental responsibility’ is all about the legal duty, power, responsibility, and authority a parent has in relation to a child. A person with parental responsibility for a child is responsible for all matters relating to, for example, the care, welfare and development of a child, such as the child’s schooling, cultural upbringing, health, name, and living arrangements.
When used in the context of family law, it more often relates to decisions that affect the child in the long run rather than short term.
In Australia, as a result of amendments to the Family Law Act (Cth) in 2006, it is presumed that each parent has ‘equal shared parental responsibility’. The presumption encourages co-operative parenting by giving parents an equal say in the long term decisions involving the child.
Those parents who bare 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. For example, if a parent wants to change the child’s school they must consult the other parent before making a decision as this relates to the child’s development.
Before an application to the Court can be made to determine parental responsibility the parents must engage in mediation, and must make a genuine attempt to resolve the matter. However, where there has been abuse or family violence an application to the Court can be made without partaking in mediation.
No, the presumption does not always apply. It will not apply to day-to-day activities of the child such as what time is bedtime and what the child eats. These types of decisions are made by the parent who has custody of the child on that day.
In addition, the presumption does not apply if it there is reason to think that:
- a parent has abused the child or any other child in the parent’s family or the family of the other parent, or
- the parent has been violent or used threatening behaviour towards a member of the family of either parent.
Where the presumption does not apply, the Court has to determine how the parental responsibility is to be split between the parents. In making this decision a Court’s first consideration will always be in the child’s best interests.
If it is not practicable or reasonable for the Court to order equal shared parental responsibility, the Court must instead make an order that the child spend substantial or significant time with both parents. In determining how much time is spent with each parent, the Court will consider factors such as:
- the child’s best interests
- if it is reasonable and practicable for the child to spend time with the parent
- how far apart the parents live from each other
- how well the parents communicate with each other and with the child
- the impact any arrangement will have on the child
- where the child attends school
- the benefit to the child of having a relationship with both parents that is meaningful
- whether the child needs to be protected from physical or psychological harm
- any views expressed by the child
- whether the parent has taken opportunities to make long-term decisions in relation to the child
- whether the parent spend times with the child
- whether the parent has fulfilled or can fulfil their obligations in relation to maintaining the child
- the personal characteristics of the child
- any history of family violence, and
- the capacity of the parent to provide for the needs of the child.
The Court can then make a parenting order with which the parents must comply. Any breach of a Court order can result in serious consequences.
This article reflects the state of the law as at 8 June 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.