When determining appropriate parenting arrangements after separation, the allocation of parental responsibility is one aspect for consideration. However, parents may lack clarity as to what the term "parental responsibility" means and how it is determined in family law disputes.
What is parental responsibility?
Parental responsibility is a central concept in parenting matters and is defined in section 61B of the Family Law Act 1975 to mean "all duties, powers, responsibilities and authority which, by law, parents have in relation to children". A person with parental responsibility for a child is responsible for making "major long-term decisions" relating to the child, including the child's education, religious and cultural upbringing, health, name, and any changes to the child's living arrangements that make it significantly more difficult for the child to spend time with one of their parents.
Court orders may provide parents with joint or sole decision-making authority in relation to specified major long-term issues. This means that one parent could have sole parental responsibility in relation to certain types of decisions (e.g. schooling) and the parents otherwise have shared parental responsibility regarding all other major long-term issues (e.g. health, religion).
In the absence of any court orders to the contrary, each parent of a child under the age of 18 has, by default, parental responsibility for the child. This remains the case regardless of whether the parents have separated, or whether they have re-partnered. Orders for parental responsibility can be applied for by (and made in favour of) a person who is not a parent, for example a grandparent, or "any other person concerned with the care, welfare or development of the child."
Parental responsibility and spend time/live with arrangements
Two of the other key concepts in parenting cases are "spend time arrangements" and "live with arrangements", which describe the arrangements pursuant to which a child spends time or lives with a parent or other person.
Importantly, parental responsibility and spend time/live with arrangements can be mutually exclusive. For instance, a parent who is not spending any time with a child may still have parental responsibility for that child. This situation could arise in a case where one parent has effectively been a single parent ─ in the absence of court orders, the other parent would still retain parental responsibility for the child. In those circumstances, the "single parent" may wish to apply to the court for sole parental responsibility for the child. Equally, even if an order is made allocating sole parental responsibility to one parent, the court may still order that the child live or spend time with the other parent.
It is a common misconception that shared parental responsibility means that both parents will spend equal time with a child. This is not the case, with the determination of appropriate living arrangements being a separate enquiry for the court.
Shared parental responsibility
The passing of the Family Law Amendment Act 2023 brings considerable changes to the role and significance of shared parental responsibility, effective 6 May 2024. Below is a comparison of how the concept of shared parental responsibility applies before and after 6 May 2024.
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Shared parental responsibility Prior to 6 May 2024 |
From 6 May 2024 onwards |
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The Family Law Act requires the court to apply a presumption that it is in the best interests of a child for parents to have "equal shared parental responsibility".1 This presumption has no necessary relationship with the time a child may spend with each parent. The presumption of equal shared parental responsibility does not apply in certain cases, including where there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in family violence or child abuse. The presumption can also be rebutted by evidence that satisfies the court that it would not be in the child's best interests for the parents to have equal shared parental responsibility. Equal shared parental responsibility requires each person to whom an order for equal shared parental responsibility applies, to consult with the other in relation to "major long-term issues" and to make a genuine effort to come to a joint decision about the relevant issue.2 There is no need to consult in relation to issues that are not major long-term issues.3 If the presumption of equal shared parental responsibility applies, the court must consider whether it is in the child's best interests to spend equal time or substantial and significant time with each parent.4 However, the presumption of equal shared parental responsibility does not create an entitlement, nor is it equivalent to, equal time.
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Rather than a presumption of equal shared parental responsibility, the court will have discretion to decide what form of parental responsibility is in the child's best interests. In the absence of any order to the contrary, both parents will retain shared parental responsibility for their child/children. The factors considered by the court in relation to a child's best interests are:
The court can still make orders for sole parental responsibility in relation to specified major long-term issues and joint decision-making for the remainder of issues. The court can also still make an order providing for joint parental responsibility in relation to all major long-term issues.
If the court makes an order for joint decision-making about any or all issues, then the new section 61DAA requires the parties to consult with the other person with joint responsibility and make a genuine effort to come to a joint decision. However, this does not require any other person (such as a medical practitioner, or employee of a school) to establish that the decision has been made jointly, before acting on that decision. |
Conclusion
Parental responsibility, as well as "spend time" and "live with" arrangements, are central issues in parenting cases. Understanding who is able to exercise parental responsibility in relation to which issues, and when and how joint decisions are to be reached, is an important aspect of co-parenting and crucial to achieving successful parenting resolutions.
For further information on parental responsibility and how it relates to your parenting matter, please contact a member of our experienced Family & Relationship Law team.
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1 Family Law Act, s 65C(c).
2 Family Law Act, s 61DA.
3 Family Law Act, s 65DAC.
4 Family Law Act, s 65DAE.
5 Family Law Act, s 65DAAA.
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