When parents separate, parenting arrangements are usually sought by the parties. At Joss Legal, clients often ask what parental responsibility means.
What is parental responsibility?
Parental responsibility is outlined in Section 61A of the Family Law Act 1975 (Cth)[1] (‘the Act’) as the legal term meaning all of the duties, powers, responsibilities and authority that both parents have in relation to their child.[2] The Act does not specify what duties or powers that parents have in relation to their children however there is a general idea of what parents should do and in short, it relates to long term decision making powers in relation to children.
It is important to note that parental responsibility not the same as equal parenting time or shared care. Shared care is a term that is often used to describe the legal concept of children spending significant time with both parents, either equal or close to.
The law presumes that it is in the children’s best interests for their parents to share parental responsibility.[3] The presumption does not apply if the child has been exposed to family violence or there has been child abuse within the child’s life.
Who has parental responsibility?
In the absence of a Court Order to the contrary, parents have parental responsibility for their children until they are 18 years old.[4] This responsibility is not affected even if the parent’s relationship changes.[5] Each parent has parental responsibility for their child, unless a court makes a parenting order or other decision transferring parental responsibility, or some part of it, to another person.
What are the types of Parental Responsibility?
The two most common parental responsibility orders are equal shared parental responsibility and sole parental responsibility.
Sole Parental Responsibility
Sole Parental responsibility is where one parent can make decisions about major long-term issues without having to talk to or agree with the other parent. There are some situations where it is in the best interest of the child to have one parent make all the decisions. Further, the Family Court can order that sole parental responsibility be granted for a specific issue or a set of issues.
Sole Parental Responsibility Example
Finton & Kimble [2017] FCWA 106
The parties entered into a relationship in early 2009 and married in 2011. They separated on 23 December 2013. There were 2 children of the marriage aged 14 months and 3 months at the time of separation. The children were seeing the father for 2 hours of supervised contact on Thursdays post separation.
This 2017 hearing in WA determined the parenting arrangements for the children, where there were allegations of family violence. The relationship between Ms Kimble and Mr Finton was describe as one of ‘significant conflict and domestic upheaval’
Ms Kimble sought parenting orders that would grant her sole parental responsibility for all major long-term issues in respect of the children including, education, religious and cultural upbringing and health.
Mr Finton sought to have equal shared parental responsibility of the two children.
The main issue affecting the judgments was the husband’s hostile behaviour and threatening nature towards a wide range of people and institutions. The husband would send scathing and criticising communications to the wife and to the Independent Children’s Lawyer assigned to the matter. This included speaking ill of the children’s mother and threatening to hurt her.
Sole parental responsibility was granted in favour of the wife. It was ordered in the best interest of the children to live with the wife and spend no time with the husband due to his inability to his treat his family and others around him with respect and care.
The wife was not criticized for her parenting as she attended to the children well.
Equal Shared Parental Responsibility
Equal shared parental responsibility means both parents share major long-term decisions on issues such as:
- Medical matters;
- Religious matters;
- Cultural matters;
- Education;
- Living arrangements – especially ones that make it more difficult for the child to spend time with the other parent; and
- The child’s name.
Both parents are required to talk about the issues together and make a genuine effort to agree.
Day to day issues for the child are not major long-term issues. These include things such as what the child eats and what they wear. The parent who is caring for the child at the time can make these decisions.
In Section 65DAA[6] of the Act outlines that if there is equal shared parental responsibility for the child, the court must consider whether the child spending equal time with the parents would be in their best interest or if it would be reasonably practicable. If this is the case, the Court can consider making an order to provide for the child to spend equal time with each of the parents.[7]
If you are unsure about parental responsibility in your situation, please feel free to get in touch with one of our solicitors at Joss Legal to obtain some advice.
[1] Family Law Act 1975 (Cth) s 61A.
[2] Family Law Act 1975 (Cth) s 61B.
[3] Family Law Act 1975 (Cth) s 61DA(1).
[4] Family Law Act 1975 (Cth) s 61C(1).
[5] Family Law Act 1975 (Cth) s 61C(2).
[6] Family Law Act 1975 (Cth) s 65DAA.
[7] Family Law Act 1975 (Cth) s 65DAA(1)(c).