What is parental responsibility?
The Family Law Act defines parental responsibility as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Basically, this means all the rights parents are entitled to exercise in relation to their children and the legal responsibilities they have to their children. For example, parents have a responsibility to ensure their children attend school until they reach the age of 16 or complete year 11, but they have the right to choose which school/s their children attend.
Which parent has parental responsibility under the law?
Unless a court makes an order to the contrary both parents of a child have parental responsibility for that child and each parent is legally permitted to exercise that parental responsibility either jointly with or independently of the other parent. This means that it is not illegal for one parent to make a decision relating to the care, welfare or development of a child without consulting the other parent. (However, there may be other repercussions for that parent if legal proceedings are commenced or ongoing.)
What does the Family Law Act say about parental responsibility?
The Family Law Act says that if a court is considering making parenting orders in relation to a child, the court must presume that it is in the child’s best interests for the parents to have equal shared parental responsibility. Equal shared parental responsibility requires parents to make decisions regarding major long-term issues affecting the child JOINTLY. This means that if a major long-term issue arises, such as where the child should live, whether he or she should practise a religion or where he or she should attend school, the parents are required to consult one another about the issue and make a genuine attempt to reach a joint decision.
The presumption in favour of equal shared parental responsibility does NOT apply, however, if there are reasonable grounds for the court to believe that one of the parents has abused the child or another child in the family or committed acts of family violence.
Further, the presumption can be rebutted if there is evidence that satisfies the court that it is not in a child’s best interests for his or her parents to have equal shared parental responsibility. For example, evidence that the parents are unable to communicate due to a highly conflicted relationship, which will make it impossible for them to consult and make a joint decision.
Alternatives to equal shared parental responsibility.
One alternative open to the court is not to make an order in relation to parental responsibility, which would leave each parent with parental responsibility and allow them to make parenting decisions unilaterally. However, this is rarely considered to be in a child’s best interests.
More commonly, a court will order that one parent has sole parental responsibility for the child or for making decisions in relation to one or more major long-term issues. For example, one parent can be given sole parental responsibility in relation to a child’s schooling or medical treatment.
How does an order for equal shared parental responsibility affect the time a child spends with his or her parents?
The Family Law Act provides that if a court is proposing to make an order for equal shared parental responsibility, the court MUST consider the child spending equal time with his or her parents as a first option. However, an order for equal time should only be made if the court considers it would be in the child’s best interests and reasonably practicable.
If an order for equal time would not be in the child’s best interests and/or reasonably practicable, the court MUST next consider whether it is in the child’s best interests and reasonably practicable to spend “substantial and significant” time with each parent.
Only if equal or substantial and significant time would not be in the child’s best interests and reasonably practicable can the court then consider some other arrangement for the child to spend time with his or her parents.
What is “substantial and significant” time?
Substantial and significant time means time which allows a parent to be involved in the child’s daily routine as well as occasions and events of significance to the child or the parent. Usually, this means the time should include weekdays, weekends, holiday, birthdays and other celebrations.