Under the Family Law Act, parental responsibility in relation to a child, means all duties, powers, responsibilities and authority which, by law, parents have in relation to children.
The amount of time a child lives with each parent is a distinct and separate issue from the level of parental responsibility each parent has for that child. For example, where a child lives with one parent and spends time with the other parent, that arrangement does not automatically grant the parent whom the child lives with sole parental responsibility. By the same token, an order that parents have equal shared parental responsibility does not automatically mean that the children will spend equal time with each parent.
It is common for an order, which sets out the live with and spend time with arrangements for a child, to also set out how parental responsibility is to be allocated. In many cases (but not all) it is appropriate for parents to have equal shared parental responsibility.
An order for equal parental responsibility imposes obligations on each of the parents by the Family Court Act such as:
- An obligation to consult;
- An obligation to make a genuine effort to come to a joint decision; and
- An obligation to jointly decide on major long-term issues.
Major long-term issues, are issues about the long-term care, welfare and development of the child and includes, but is not limited to issues regarding:
- The child’s education (both current and future); and
- The child’s religious and cultural upbringing; and
- The child’s health; and
- The child’s name; and
- Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Parents are not required to consult with the other parent about issues that are not considered major long-term issues, for example what a child eats and what a child wears whilst in the parent’s care.
When deciding whether to make a parenting order, the court must apply the presumption that it is in the ‘best interests’ of the child for the child’s parents to have equal shared parental responsibility.
This presumption does not apply if 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:
- 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
- Family violence.
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. Such evidence may include communication issues where there is a high level of conflict between the parents, such that it would likely be very difficult for the parents to be able to reach agreement on significant issues about the child, to the child’s detriment.
Where the presumption is rebutted, an order for sole parental responsibility is likely to be granted. The parent whom is granted sole parental responsibility can solely decide all major long-term issues, subject to other obligations imposed by law or a parenting order. For example, a parent who has sole parental responsibility would not be able to make changes to a child’s living arrangements if it meant a child wouldn’t be able to spend time with the other parent pursuant to a court order.
If you require assistance in relation to your parenting matters with your former spouse or partner, phone our office on (02) 6051 5100 to book an initial appointment with one of our Family Law Solicitors