When you separate from your spouse or partner, you will have a lot of things on your mind. It will be a stressful time for you, especially if you have children together. You may have moved out of the family home and you’ll need to figure out how to divide your shared property. You may be in the midst of divorce proceedings. You’ll probably be worried about what will happen to your children and how often you’ll see them, or if you’ll still be responsible for their welfare.
You’ll have questions about child custody and will be worried about making sure that they have a stable environment. Divorce or separation can be just as difficult for young children as it can be for the parents.
We want to help you through this difficult time, so we’ve created a guide on what equal shared parental responsibility is and how it affects you and your children.
What is parenting responsibility?
The definition of parental responsibility is laid out in section 61b of the Family Law Act (cth) and refers to the authority and power to make decisions related to the welfare and care of your child.
If you have parental responsibility then you are required to provide for the needs of the child by protecting them from harm such as domestic violence or sexual assault, to give your child a place to live, clothing and food, financial support, medical care and an education.
Parenting responsibility is not necessarily limited to biological parents. By the order of the court it could be awarded to adoptive or surrogate parents; or a legal guardian such as a grandparent or other family member.
Parenting after separation
Relationships don’t always work out. Sometimes you will find that you and your spouse or partner go your separate ways after having children together. You still have the needs of your child to consider though.
If your child is under the age of 18 then you will need to consider how the separation will affect your parenting and what impact any decisions you make you have on your child. Your primary considerations are likely to be what impact any decisions will have on your child’s daily routine.
What is equal shared parental responsibility?
Subsection 61da of the Family Law Act states that the court must have regard for the presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility.
The presumption of equal shared parental responsibility came into force after amendments to the Family Law Act in 2006. Equal responsibility and equal time are not the same thing. This means that your child could live with you only two weeks out of the year but you are still equally responsible for their welfare and making decisions that affect them.
When hearing a case, the Family Law Court will consider the best interest factors which are whether it will be of any benefit for the child for both parents to have meaningful involvement in the child’s life.
Both parties in Court proceedings will be given time to make statements about whether the child will suffer neglect or psychological harm if both parents are given equal shared parental responsibility.
If the Court determines that the child is likely to suffer abuse or neglect then recommendations will be made against the presumption of equal shared parental responsibility.
How does this differ from sole parental responsibility
The Family law system in Australia is designed to put the needs of the child first in any court proceedings. Generally that is for both parents to have equal involvement in their child’s life. The concept of parental responsibility was made part of the Family Law Act so that children can have a meaningful relationship with both their parents.
Equal shared parental responsibility is different from sole parental responsibility because before making any decisions about your child, you will need to consult the other parent. When you have sole parental responsibility you can make any decisions that you want and you will not need to consult the other parent.
Equal shared parental responsibility is not guaranteed just because you are the biological parent. The Court can make a Sole Parental Responsibility Order under section 61da of the Family Law Act if they think there are reasonable grounds to believe that you have abused the child or there has been evidence of family violence. If there has been evidence of violence, then the Court may hear the matter urgently and make an interim order.
How does equal shared parental responsibility work in practice?
In practice, this means that you can not make decisions on your own about:
- medical matters
- child’s education
- child’s health
- child’s name
- child’s education
- child’s living arrangements
- religious matters
It also means that you cannot make decisions about the major long-term issues or the child’s daily routine without consulting the other parent.
Even though you are no longer in a relationship with the other parent, they still have a right to a relationship with their child, and the child still has a right to a relationship with their other parent.
Basically, even though the relationship is over, you are still equally responsibility for the child. This doesn’t necessarily mean that you will spend equal time with the child. It may be more practical for the child to live with one parent for school terms but then they’ll stay with the other parent or another member of the child’s family, such as an aunt, uncle or grandparent for the school holidays so that the child’s stability is not disrupted.
Whether or not the child lives with you or the other parent will depend on the nature of the relationship of the child to each parent. The Court will always consider this when deciding how parental responsibility should be allocated.
Best interests of the children
Australian family law always places the best interest of the children first. The Court considers it in your child’s best interests for them to have a relationship with you and the other parent until the child turns 18. After their 18th birthday they are free to make their own decisions.
The child’s best interests relate to long term issues (such as schooling, religious matters, living situations and health matters). The short term issues are things like what they should have in their lunch at school and what clothes they should wear.
When determining how to allocate parental responsibility the court will consider a number of facts including, but not limited to the following:
- the impact having a relationship with both parents will have on their life
- the need to protect the child from physical or psychological harm, for example, there could be a situation where if a child lives with a particular parent they may be harmed by a member of the parent’s family, in which case it may not be in their best interests to live with them or be in their presence while certain people are in their house
- the child’s opinions and the nature of relationship they have with the person’s family such as their grandparents or other relatives
- the impact of being separated from one of their parents
- whether the child has been subjected to domestic violence or assault previously
- the child’s daily routine for example, do they play sports or are they involved in other cultural pursuits outside of school?
Being a biological parent of a child does not give you automatic right to parental responsibility. Under section 65daa of the Family Law Act, the Court must consider the best interests of the child when making a Parenting Order and parents are not always given equal shared parental responsibility. Sometimes sole custody is awarded to one of the parents.
How do we make decisions together?
If a Parenting Order has been made giving both you and your former partner equal shared parental responsibility then you will need to make decisions together. You may find it difficult in the early stages to make decisions with your former spouse however you need to for the sake of your child.
We have helped many families who have struggled to make decisions with their former spouse however in situations where both parents have joint custody it is imperative for the sake of your child.
The first thing you can do to minimise disruption to your child’s daily routine is to show a willingness to compromise with them and to meet them in the middle. For example, if you are strongly for or against them going to a particular high school you and your former partner could talk to your child together and ask them what their views are. Then you can weigh up the pros and cons together and reach a decision that you are all happy with.
If, on the other hand you and the other parent have different methods of discipline where one parent is stricter than the other then again, compromise may be necessary and you may have to be willing to make compromises.
Being open and honest during discussions is the key to making decisions together and will ensure that your child’s best interests are met.
What happens if we can’t agree?
In some cases you will not agree with your former partner and you may be wondering, well what happens now? Family Relationships Australia’s website suggests attending mediation if you cannot reach a mutual agreement.
If the matter still isn’t resolved after mediation, you can ask a judge in the Family Law Court to make a decision for you. They will make a ruling based on the child’s best interests.
The goals of equal shared parental responsibility
The goals of equal shared responsibility are to give children the opportunity to build a meaningful relationship with both of their parents even after they have separated. It is also to give parents an equal opportunity to be involved in making decisions about their child’s life.
At what age does parental responsibility end?
Parental responsibility ends when your child turns 18 and does not automatically end when you separate or divorce unless a Parenting Order has been made by the Court.
Can parental responsibility be taken away from a father?
Parental responsibility can be taken away from a father if the Court makes an Order terminating shared parental responsibility. The Court will only do this in circumstances where they believe it is not in the child’s best interests to be in your care.
The most common scenarios where you could lose parental responsibility for your child is if you are found guilty of a violence offence or if they have reasonable reason to believe that you will cause your child emotional or physical harm if you retain parental responsibility.
In one scenario, a father lost parental responsibility for his sons because he had been convicted of sexually assaulting the son’s stepsisters. In another case, a father lost parental responsibility after he was convicted of a drug offence. The Court ruled that he was not committed to the welfare of his child.
Can A Mother Lose Parental Responsibility?
Mothers can also lose parental responsibility for their children if the Court has reasonable reason to doubt their ability to look after their child. For example, if you have been dependent on drugs or are mentally unstable and likely to pose a threat to your child then you could lose parental responsibility for your child.
The best interests of your child will always be considered by the Court.
Related Links & Resources
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If you have recently separated and want personalised legal advice about what will happen to your children then give Unified Lawyers a call on 1300 667 461. From the very first time you speak to us we will do our best to simplify any legal jargon so that you can understand it and know exactly where you stand with your parenting matter.
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