Parental responsibility generally means the responsibility a parent has over their children below 18 years of age. This concept is most relevant in Family Law whenever parents separate or file for a divorce. This article discusses parental responsibility under Australian Family Law and Family Law Act (1975).
What Is Parental Responsibility Under Family Law?
Parental responsibility refers to the legal duty, power, responsibility, and authority a parent has over their children. A parent is responsible for all matters relating to the care, welfare, and development of a child, such as the child’s schooling, cultural upbringing, health, and living arrangements.
When used in the context of Family Law, parental responsibility often relates to long-term decisions, rather than short-term. And under family law in Australia, anyone who is the parent of a child under the age of 18 years has this responsibility for their children, even if the relationship arises as a result of adoption.
Significantly, the responsibility remains, regardless of any change in the relationship between the child’s parents, such as remarriage, separation, or divorce.
After the parents of a child separate, they may have equal shared parental responsibility or sole parental responsibility. When two parents separate and seek a court order, the Court will consider the best interests of the child before making an order.
When Does Parental Responsibility Apply?
Under the Family Law Act 1975, parents have responsibility over their children until they turn 18. Even after separation or divorce, the parental responsibility will not automatically change. Parents can both make decisions about major long-term issues such as living arrangements, among others.
Under the Family Law Act, all the duties may fall to one parent, or the Court may issue a parenting order where both parents share responsibility over the child.
Section 61D of the Family Law Act deals with parenting orders and parental duties. This Section provides that courts can make parenting orders that can award a person parental duties for a child. Parental duties in this instance will include all the duties, powers, responsibilities, or authority in relation to the child.
Moreover, a parenting order will not diminish any aspect of the parental duty of any person for the child. However, such an order can diminish an aspect of parental duty if the Court states this while making the order. Moreover, an order can diminish any aspect of parental duties if this is necessary to give effect to the order.
In addition, before the Court makes a parenting order to determine where the child lives, they will consider all the circumstances surrounding the separation. This includes whether the child is likely to experience physical or psychological harm and if there was any child abuse or family violence involved before the parents separated.
Equal Shared Parental Responsibility After Divorce or Separation
Divorced or separated parents must remember that they have equal shared parental responsibility to ensure their child’s best interest.
It is important to understand equal shared parental responsibility is different from child custody. The parent of whom the child lives with is not always the parent who can make major decisions for the child.
Divorced or separated parents also need to recognise that there may be times when one parent must consult the other on life decisions for the child. These decisions may include where the child attends school, major health decisions, and religious observances.
The Family Law Amendment Act 2006 places an increased focus on the rights of children to have a meaningful relationship with both parents and to be protected by them. The law also sets a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.
When the Presumption Does Not Apply
It is crucial to know that the presumption on equal shared parental responsibility does not apply if the following are present:
- a parent has abused the child or any other child in the parent’s family or the family of the other parent, or
- the parent has been violent or used threatening behaviour towards a member of the family of either parent.
The presumption does not apply if the parent engaged in family violence. When it does not apply, the court has to determine how the parental responsibility will be split between the parents. And in making such a decision, the Court’s first consideration will always be the child’s best interest.
When a Parent’s Responsibility Changes
The responsibility parents hold over their children may change in some situations. One parent may have died or abandoned the child. Or perhaps the parent has become too ill for the child’s upbringing.
A court may decide it is in the best interests of the child to remove parental responsibility from one or both parents. The law allows courts to make orders transferring the legal responsibilities of parenthood to somebody else or changing them in various ways. A court can decide to assign parental responsibility to grandparents, foster parents, legal guardians, or any other relatives.
Parenting Time
Equal shared parental responsibility is not the same as equal time. There is no rule that children must spend equal or “50:50” time with each parent. Parents will spend equal time with a child only where:
- they can agree to this arrangement, or
- a court finds that equal time is in the best interests of the child and is the most suitable arrangement.
In most cases, it is best that both parents discuss their child’s individual needs and how they will spend time with their parents.
Seeking Legal Advice from Expert Family Lawyers
When couples decide to separate or go through with a divorce, matters of the children remain an important issue. There will be battles on child custody as well as the responsibilities of the parents towards their children. Hence, we highly advise seeking legal advice.
JB Solicitors has a leading team of expert family lawyers who can help with your case. We can advise you on your responsibility as a parent, parenting rights, parenting arrangements, and parenting disputes.
Do you have any more queries? Contact us today
