Parental Responsibility vs. "Custody": What WA Parents Need to Know

Relationship separation is one of the most challenging experiences a person can face, particularly when it involves disentangling financial, lifestyle, and family dynamics that have become deeply intertwined with someone toward whom one may carry a history of complex negative emotions or trauma. When children are involved, the emotional intensity and legal complexity are heightened even further. For generations, separated parents have spoken in terms of "custody," "access," and who has "control" of the children. However, Australian family law has undergone a profound shift, moving away from this possessive language toward a legal framework centered on a single guiding principle: the best interests of the child.

If you are a parent in Western Australia facing separation, understanding the modern legal concepts of "parental responsibility" and "parenting time" is the first and most crucial step. This knowledge empowers you to make better decisions, reduce conflict, and focus on what truly matters – a safe, stable, and nurturing future for your children.

The End of "Custody": A Shift in Legal Focus

The Family Law Act 1975, which governs parenting matters across Australia, intentionally removed outdated terms like "custody" and "access" many years ago. This was a deliberate and important change. The old language often created a "winner takes all" mentality, encouraging disputes over who "gets" the children.

The modern legal framework centres on the rights and well-being of the child. The law no longer sees children as objects to be won, but as individuals with a right to have a meaningful relationship with both of their parents, provided it is safe to do so. This philosophical shift is reflected in the terminology the Family Court of Western Australia uses today.

What is Parental Responsibility?

Parental responsibility is the legal term for all the duties, powers, responsibilities, and authority that parents have in relation to their children. It is not about day-to-day care but about making significant, long-term decisions that shape a child's life.

Under the Family Law Act, these "major long-term issues" include decisions about:

• Education: The choice of school (public or private), tutoring, or other significant educational matters.

• Health: Decisions about medical treatments, vaccinations, or ongoing therapeutic support.

• Religion and Culture: The religious or cultural upbringing of the child.

• The Child's Name: Any changes to the child's given or family name.

• Living Arrangements: Changes that make it significantly more difficult for a child to spend time with the other parent, such as relocating to another city or state.

  
  

In the absence of any court orders, parents are considered to have equal shared parental responsibility. This means they both have a legal duty to consult one another and make a genuine effort to reach a joint decision on these major issues.

The Presumption of Equal Shared Parental Responsibility

When parents are unable to agree and seek assistance from the Family Court of Western Australia, the court begins its decision-making process with a legal starting point: a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.

It is vital to understand that this is a presumption, not an absolute rule. The court can, and will, set this presumption aside if it is not in the child's best interests. The most common reasons for rebutting the presumption are the presence of family violence or child abuse. If there are reasonable grounds to believe a parent has engaged in such behaviour, the presumption will not apply. It can also be rebutted if the level of conflict between parents is so high that joint decision-making is impossible and would expose the child to further harm.

If the court orders that parents have equal shared parental responsibility, it legally obligates them to cooperate on those major long-term decisions for their child's future.

The Crucial Distinction: Responsibility Does NOT Equal Time

This is the most common point of confusion for separating parents. The presumption of equal shared parental responsibility is about decision-making power. It has no automatic connection to the amount of time a child spends with each parent.

An order for equal shared parental responsibility does not mean that a child will live in an equal 50/50 time arrangement. The court treats these as two separate questions:

1. Who should make the major long-term decisions? (Parental Responsibility)

2. What living arrangement is in the child's best interests and is reasonably practical? (Parenting Time)

   
   

After the court determines the issue of parental responsibility, it then considers the actual time the child will spend with each parent. If an order for equal shared parental responsibility is made, the court must then consider making an order for equal time. However, it will only make that order if it is both in the child's best interests and reasonably practical.

Factors that influence practicability include the distance between the parents' homes, the impact on the child's schooling and social life, and the parents' ability to communicate and cooperate on logistics. If equal time is not deemed to be in the child's best interests or is not practical, the court will then consider an arrangement where the child lives with one parent and spends "substantial and significant time" with the other. This typically includes weekends, holidays, and some midweek time.

How the Court Decides: The "Best Interests" Principle

Every decision the Family Court of Western Australia makes is guided by a single, paramount consideration: what is in the best interests of the child. The Family Law Act provides a specific list of factors the judge must consider, including:

• Promoting the safety of the child (this is the most important consideration).

• Any views expressed by the child (with weight given depending on their age and maturity).

• The benefit to the child of having a meaningful relationship with both parents.

• The capacity of each parent to provide for the child's physical, emotional, and intellectual needs.

• The child's developmental, psychological, and cultural needs.

  
  

What This Means for You

As a separating parent in WA, shifting your mindset from "winning custody" to fostering co-parenting is the most constructive path forward.

1. Focus on Communication: Unless there are safety concerns, try to establish a respectful, business-like communication channel with your ex-partner to discuss the children's needs.

2. Develop a Parenting Plan: Before heading to court, try to work together, perhaps with the help of a mediator, to create a written parenting plan. This demonstrates your ability to co-parent effectively.

3. Prioritise the Child: In every discussion and decision, consciously ask yourself, "What is truly best for my child in this situation?"

4. Seek Professional Advice: Family law is complex. Engaging a lawyer early in the process can help you understand your rights and obligations, manage your expectations, and navigate the system effectively. An experienced family lawyer can provide clarity on your specific circumstances and help you find the most child-focused and cost-effective resolution possible.

   
   

By understanding the legal principles that guide the Family Court of Western Australia, you can better navigate your separation with confidence and work towards a positive outcome for your family.