The concept of “parental responsibility” is common to family law parenting disputes, however, there is often confusion surrounding its meaning. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced the concept of “parental responsibility”.
The Family Law Act 1975 (Cth) (‘FLA’) section 61B defines “parental responsibility” as:
‘In relation to a child, all the duties, power, responsibilities and authority which, by law, parents have in relation to children.’
Whether the parents are together or separating, it is their responsibility to make arrangements that are in the best interests of the child. Each parent has parental responsibility for their children until they are 18 years of age. This Parental responsibility is not affected by changes in the parents’ relationship; for example, if they separate or remarry.
How does the Family Court make decisions about parental responsibility?
Under the relevant law, each parent has ‘parental responsibility’ for their children, until the children become adults at 18 years old. Parental responsibility includes making the following major decisions for the children:
- Parental responsibility means all of the duties, powers, responsibilities and authority that parents have in relation to their child. It is not the same as equal parenting time or shared care.
- Equal shared parental responsibility means both parents share major long-term decisions on issues such as:
- medical matters
- religious matters
- cultural matters
- living arrangements.
Day-to-day decisions, such as what the children eat or wear, are not included in these responsibilities.
Note, it is possible for one parent to have sole parental responsibility, for multiple persons to share parental responsibility of a child, for a person other than a parent of the child to have parental responsibility for that child, and for parental responsibility to be shared other than equally (e.g. different persons may have responsibility for specific aspects of the child’s upbringing).
Equal Shared Parental Responsibility
Each of the parents of a child under the age of 18 years has parental responsibility for that child, notwithstanding any changes in the nature of the relationships of the child’s parents. Where either parent obtains sole parental responsibility (for example, upon the death of the other parent), there is no presumption that any particular parenting orders will be made in relation to that parent.
As a starting point, Under section 61DA of the FLA (and section 70A of the Family Court Act 1997 (WA)), when a court makes a parenting order, it must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption was introduced to facilitate the right of children to have the benefit of both parents involved in a meaningful way in their lives to the extent that the involvement remains in the best interests of the child, as well as ensure parents fulfil their obligations and responsibilities to their children.
Parents are obliged to consult each other about major long-term issues and genuinely attempt to reach joint decision. Obligations regarding equal shared parental responsibility may apply to some matters but not all for which parents are to make long-term decisions. In some cases, sole parental responsibility is given to one parent if appropriate in the circumstances.
The presumption is displaced if there are reasonable grounds to believe that either parent, or a person whom the parent lives with, is or has been engaged in either abuse of a child or family violence.
Furthermore, an order for equal share parental responsibility is not automatically determinative of an order being made for a child to spend equal time or substantial and significant time with each parent. Parents who have parental responsibility can also be the subject of orders as to how they communicate with each other (s 64B(2)(d)), or the manner in which any dispute is to be dealt with (s 64B(2)(h)).
What Happens if Equal Shared Parental Responsibility is Displaced by the Court?
If the presumption of equal shared parental responsibility is displaced, sole parental responsibility is the alternative to equal shared parental responsibility. This means one parent adopts full parental responsibility for a child and can make long-term decisions for a child solely, without input from the other parent.
Orders for sole parental responsibility are only made if it is in the best interests of the child to do so. However, it must be noted that sole parental responsibility and equal shared parental responsibility are not the only two alternatives. In some cases, a parent may have sole parental responsibility for one specific long-term major issue, with the balance of major long-term decisions having to be made by both parents equally.
For more information please see the Family Court of Western Australia’s Parental Responsibility Webpage or contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute phone consultation with one of our Lawyers.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.