Parental Responsibility

As discussed in our article entitled “Child Custody Disputes – Parenting Orders“, a Parenting Order can be made by consent, or where agreement cannot be reached, by the Court. A Parenting Order can deal with matters such as the parent with whom a child is to live and how much time a child is to spend with the other parent. Reforms to the legislation came into operation on 11 June 1996, and these reforms included a complete change in the terminology used to refer to the legal position of parents in relation to their children, and the types of Orders which the Court might make in resolving child custody and parenting disputes.

In particular, the terms “guardianship”, “custody” and “access” were removed from the Family Law Act 1975 in 1996 and in 2006 further reforms removed the terms “residence” and “contact”. This terminology was replaced with “lives with”, “spends time with” and “communicates with”. Previously, the Court usually made a custody order in favour of one parent and an access order in favour of the other parent, whereby the parent who had custody had residence rights and the parent who had access had only contact rights. The parent who had custody of a child was assumed to have all powers, authority and responsibilities in relation to the day-to-day care of the child.

A Parenting Order can also deal with the allocation of parental responsibility. This is defined under section 61B as meaning ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ In absence of any Court Orders, both parents have parental responsibility until a child turns 18 (s61C Family Law Act 1975). Parental responsibility refers to decision-making power in relation to major decisions for the long-term care, welfare and development of the child. The Family Law Act under section 4 defines “major long-term issues” in relation to a child as meaning issues of a long-term nature such as issues about: the child’s education (both current and future); the child’s religious and cultural upbringing; the child’s health; 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.

The 1996 reforms introduced the concept of ‘parental responsibility’ and provided that each parent has parental responsibility, under section 61C of the Act. However it did not provide that parents have joint parental responsibility, or that they “share” parental responsibility. Therefore it left open the question about whether the law imposed an obligation on parents to consult, or simply make decisions jointly.

In 2006, the presumption of ‘equal shared parental responsibility’ was introduced to the legislation under section 61DA. This means that now, when making a Parenting Order, the Court must apply a presumption that it is in the best interests of the child for his or her parents engage in consultative decision-making by having equal shared parental responsibility. However, parents do not need to consult for every decision in relation to a child. Under section 65DAC of the Act, decisions about issues that are not major long-term issues can be made by the parent with whom the child is spending time without a need to consult the other parent. This will mean that the parent with whom the child is with at a particular time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues (s 65DAE of the Act).

The effect of a Parenting Order that provides for shared parental responsibility is that it requires each person to consult the other person in relation to the decision to be made about a major long-term issue; and to make a genuine effort to come to a joint decision about that issue. It does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

However, the Court acknowledges that in some cases it may not be appropriate for parents to have equal shared parental responsibility. The presumption will 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 (s61DA Family Law Act 1975). Furthermore, the presumption may 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 for the child. For example, in the case of Handley v Tranter (2007) it was held that it would not be in the best interests of the child for the parties to have equal shared parental responsibility as the parties could not effectively communicate.

In child custody and parenting disputes, the areas of conflict often revolve around where the children will live and how much time the children will spend with the other parent. If a Parenting Order is to provide that a child’s parents are to have equal shared parental responsibility then the Court must, under section 65DAA of the Act, consider whether it would be in the best interests of the child to spend equal time with each of the parents, and whether equal time with each parent is reasonably practicable having regard to how far apart the parents live from each other; 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 parents; 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 the impact that an arrangement of that kind would have on the child. If equal time would be in the best interests of a child and is reasonably practicable, then the Court must consider making such an Order. However, if the Court does not make such an Order, it must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonably practicable.

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.