Both parents have parental responsibility for a child until that child turns 18. Parental responsibility is defined in the Family Law Act 1975 (“The Act”) to mean “all the duties, powers, responsibilities and authority that, by law, parents have in relation to children”.
Under Section 61DA of The Act there is presumption that it is in the best interests of the child to make an Order that provides for the parents to have equal shared parental responsibility. This Order places an obligation on the parents to consult with each other and make a genuine effort to agree on major long-term decisions about the child or children including:
- Religious and cultural upbringing
- Name change
- Changes to the child’s or children’s living arrangements which make it significantly more difficult for the child to spend time with one parent (such as moving to a new area or relocating the child’s or children’s principal place of residence).
Equal shared parental responsibility does not correlate to a child or children spending equal time with each parent. The decision about equal shared parental responsibility is made separately to any consideration of how much time a child spends with each parent. However, once an Order for equal shared parental responsibility has been made, the Court must consider whether an Order should be made for a child to spend equal time with a parent and if not, whether an Order for substantial and significant time should be made, or what other arrangements are in the best interests of the child.
Section 60CA of The Act provides that the bests interests of the child are the paramount consideration in deciding whether to make a particular parenting Order.
Section 60CC sets out how a Court will determine what is in a child’s best interests. The best interests of the child are made up of primary and additional considerations. The primary considerations are:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect children from harm is given great weight in cases where there is family violence, child abuse or risk of exposure to either.
The additional considerations that the Court must take into account include:
- Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
- The nature of the relationship of the child with:
- each of the child’s parents; and
- other persons (including grandparents or other relative to the child);
- The extent to which each of the child’s parents have taken, or failed to take, the opportunity:
- to participate in making decisions about major long-term issues in relation to the child; and
- to spend time with the child; and
- to communicate with the child.
- To participate in making decisions about major and long term issues in relation to the child;
- To spend time with the child;
- To communicate with the child
- The extent to which each parent has fulfilled his or her obligations to maintain the child;
- The effect on the child of any changes and the child’s circumstances;
- The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on the child of maintaining personal relationships and direct contact regularly with both parents;
- The capacity of each parent and others to provide for the child’s needs;
- The maturity, sex, lifestyle and background of the child and parents;
- The child’s right to enjoy Aboriginal or Torres Strait Islander cultural, where relevant;
- Each parent’s attitude to the child and to parenting;
- Any family violence involving the child or a member of the child’s family;
- The desirability of making the Order that is least likely to lead to further proceedings; and
- Any other fact or circumstance the Court thinks relevant.
Whilst there is a presumption for equal shared parental responsibility, that presumption is rebuttable where there is evidence to show it is not in the best interests of the child for the parents to have equal shared parental responsibility.
Sole Parental Responsibility
Sole parental responsibility may need to be considered in some matters.
When looking at appropriate parenting Orders to be made, it is important to understand that each case is unique. That is, it is not a “one size fits all”. What may be appropriate for another family may not be at all appropriate for your family and it is important that you obtain advice from professionals. Doolan Callaghan Family Lawyers can assist you in finding the right parenting solution for your family following separation.
Doolan Callaghan Family Law Team