Separating or divorcing from your former partner or spouse is often a difficult time for both parties involved. It can be even harder when you have shared property or a child together. The process can be much more complicated and you need to consider how responsibility for any children will be shared between the two parties.
If there was family violence you might be hesitant to share custody with the other parent so you will need to establish what access each parent will have, and if anyone will have sole custody, or equal shared responsibility. Before making an Order, the Court has a duty of care to ensure that a child’s well being is protected and that they are kept safe from harm.
This article will make a genuine effort to provide you with insight into the different types of parental responsibility and how they are dealt with in the Family Court of Australia or the Federal Circuit Court.
What is parental responsibility?
Parental responsibility is referred to in the Family Law Act 1975. Parental responsibility refers to the powers, responsibilities and authority, which by law are held by a parent in relation to a child. All the duties may fall to one parent or a parenting order may be made that gives both of the child’s parents shared responsibility for the child.
Before the Court makes a Parenting Order to determine where the child lives, they will consider all the circumstances around 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 before the child’s parents separated.
Parental responsibility covers all the duties, powers, responsibilities and authority the parents have in relation to their children. It is divided into daily decisions such as what the child eats or wears; and longer term issues related to the child’s name, the child’s living arrangements, the child’s health, the child’s religious or cultural upbringing, matters related to the child’s education and where the child spends their time or other long term decisions in relation to the child.
After parents of a child separate, they may have 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.
Equal shared parental responsibility
In Australian Family Law there is a presumption of equal shared parental responsibility. This means that both parents will be responsible for making decisions in relation to the welfare and development of the child.
Before Parenting Orders are made by the Family Court, usually both parents have equal shared parental responsibility for the child and so the Court is required to consider the presumption that it is in the child’s best interests for both parents to have equal shared parental responsibility.
Although Australian Family Law has a presumption of equal shared parental responsibility there are situations where the Court may give one parent sole custody of the child. If there are reasonable grounds to believe that the child may experience family violence then equal shared parental responsibility is unlikely to be awarded because it is not in your child’s best interests.
When going to Court you may request as a starting point that the other parent is consulted about any major long term decisions. This could include making a joint decision on what activities the child participates in after school or what religion they follow. It is important to note that equal responsibility is not the same as equal time so this could mean that your child does not live with you however you and your former partner make joint decisions about the child.
Shared parental responsibility is often referred to as joint custody, however the legally correct term in Australia, according to the law, is equal shared parental responsibility.
Sole parental responsibility
Australia’s family legislation operates on a presumption of equal shared parental responsibility. There are situations where it is in the best interests of the child to award one of the parents sole parental responsibility.
Situations where awarding one parent sole responsibility include where the child has been exposed to family violence or the parent has abused the child. If that is the case, then the Court would decide that it is not in the child’s best interests for the parents to have equal shared parental responsibility for the child.
Australians often refer to sole parental responsibility as sole custody which means that the duties, powers and responsibilities will rest with one parent.
Why is parental responsibility important?
Parental responsibility means that you and/or the other parent are responsible for making decisions in relation to a child as well as any child that you may have from a former partner. Australian legislation outlines the responsibilities that parents have for children.
These responsibilities include protecting them from harm, providing them with food, shelter, clothing and access to medical care if they are sick or injured. They do not necessarily mean the parents will spend equal time with the child.
When does parental responsibility apply?
Under the Family Law Act 1975 you and the other parent have responsibility until your child turns 18. Even if you separate from your partner, your parental responsibility will not automatically change. You can both make decisions about major long term issues such as how far away from each other the parents live. If you do live far away from each other then it may make it hard for the child to spend time with you.
What are major long term issues for a child?
The law defines major long term issues as issues relating to your child’s care, development or welfare of a long term nature and could relate to their education, health, religious upbringing, their name or other living arrangements that may have an . An example is if another member of the parent’s family moves into the house and living with them is not in the best interests of the children.
If you and the other person have equal responsibility for parenting decisions then you cannot make decisions related to major long term issues without agreement from the other parent. If you cannot agree on what decision to be made then you can ask the Court to decide for you.
What is more appropriate – sole parental responsibility or equal shared parental responsibility?
Every Family Law Court case is assessed according to what will be in the child’s best interests. Although the presumption is that both parents are equally responsible for the children there are situations where it is more appropriate for one parent to have sole responsibility for the child.
If you are seeking sole parental responsibility, then it is important that you seek legal advice from one of our lawyers who has vast experience in dealing with these matters. We can advise you on what you need to prepare for your Court case and how you can present your case in the best possible light so you have a strong chance of succeeding.
Parental responsibility Australia
Parental responsibility in Australia differs from other countries such as the US. Up until the 1970s custody was awarded to a parent based on gender, however that has changed in recent years. The courts now consider what will be best for your child rather than the gender of the parent.
The Parental Rights and Responsibilities Act of 1995 was introduced into the United States Congress which set out the rights and responsibilities of parents. The US Congress is the Government body responsible for passing legislation. The Australian equivalent is the Senate, which is the Upper House.
The parental responsibility Family Law Act
Australia’s parental responsibility rules are set out in Division 2 of the Family Law Act and include the effect of adoption on parenting. The Court may grant leave for adoption proceedings in certain cases. An adoptive parent is considered a member of the person’s family for the purposes of parenting responsibilities. The legislation also provides for legal matters related to surrogacy or artificial conception.
What to do if you need advice on parenting arrangements during a Divorce
Our team of passionate family lawyers will make a genuine effort to help you get the outcome you want and our child custody lawyers specialise in helping dads with legal advice. Give us a call on 1300 667 461 for a confidential discussion about your personal circumstances.