Parental Responsibility in Family Law
Why does Australian family law support the concept of equal shared parental responsibility?
When a couple separates or divorces, the impact on their children can be huge. The parents themselves can also pay a high price if they suddenly find themselves unable to see their children, or bearing most of the expenses. Australian family law tries to minimise this impact in various ways, including with equal shared parental responsibility.
What is parental responsibility?
Parental responsibility means that a person has responsibilities for a child, including:
- Legal obligations
- Decision-making authority
- Caring for the child’s daily and long-term needs
Parental responsibility doesn’t just apply to parents of a child. It concerns anyone with responsibility for a child. A child is someone who is under 18 years of age. Parental responsibility may extend to:
- Biological parents
- Adoptive parents
- Legal guardians, including grandparents
The law usually assumes that a child’s parents have parental responsibility. However, sometimes the child is cared for by someone else, for example, a grandparent. In those circumstances, parental responsibility will also shift to that person.
What is equal shared parental responsibility?
Equal shared parental responsibility is a legal term. It means that the law presumes that both parents have equal responsibility for the care of their children unless there’s a court order or parenting plan that says otherwise.
When there’s equal shared responsibility, both parents get equal rights to make decisions for their kids. They must work together to make the decisions. For example, the parents should consult with one another when choosing a child’s school, or where the child will live.
Because this is a presumption, it’s a starting point only. There may be a reason why one parent can’t or shouldn’t make those decisions, for example, if one parent’s history of violence poses a threat to the child’s safety. These things must be taken into account when making a parenting plan or when a court makes parenting orders.
What type of decisions can someone make when they have parental responsibility for a child?
If you have parental responsibility for a child, you can make decisions about the child’s care, welfare and development, including:
- Schooling and education
- Culture and religion
- Living arrangements, including how they divide their time between each parent
- Outside-of-school activities, for example, sports, music, dance and other interests.
The concept doesn’t include equal financial responsibility as the law recognises that many parents have different earning capacities, often due to one parent working less and taking on more caring responsibilities for the children.
Nor does the concept include daily decisions that a parent may make about a child, for example, whether they walk home from school or catch the bus, or at what time they go to bed.
However, these daily decisions can sometimes cause significant issues between parties. For example, walking home from school may pose a risk to the child’s safety. Or the child’s health issues mean that they need more sleep and so an earlier bedtime is necessary.
It’s possible to include details about children’s daily lives in a parenting plan or to apply for court orders. If you’re concerned about how to enforce decisions for your child’s daily living arrangements, contact us for assistance.
How does a court work out what is equal shared parental responsibility?
Like many other aspects of Australian family law, a court must undertake a balancing act when deciding on parental responsibility. There’s no one-size-fits-all solution. It differs with each case because each set of circumstances is unique.
The most important consideration for a court is the child’s best interests.
The court will do everything it can to ensure that the child isn’t exposed to physical harm, psychological harm, abuse or neglect, whether those threats come from either parent or anyone associated with either parent.
The court will consider that wherever possible, each child has a right to a meaningful relationship with both parents. It will also take a detailed look at all aspects of the child’s life, including:
- Where they go to school
- Where the parents live
- How long the child will spend travelling to each parent’s house, and school
- The child’s ability to participate in activities if there’s significant travel involved
- The child’s ability to spend quality time with each parent
- The child’s ability to spend quality time with other important people, for example grandparents
- How the child is coping
- The child’s wishes (but the weight that a court will give to their wishes will depend on the child’s maturity and understanding of the situation)
- Whether the parents are capable of caring for the child
The court will weigh up all of these things and then make a decision.
Why does a court allow a child to spend more time with one parent? Does that breach the principle of equal shared parental responsibility?
Sometimes, a court will make decisions that appear unfair to one party. For example, instead of the child living with each parent 50 per cent of the time, a court will say that the child lives with one parent during the week and the other on weekends. Or during the school term, the child lives with one parent, while the other gets to see the child only on school holidays.
The court will often weigh up where the parents live and the time that the child must spend travelling between homes. It will consider the disruption to the child’s life and the effect that this may have on their schooling. It may decide that it’s in the best interests of the child to have minimal disruption to the daily routine.
The Family Court of Australia (FCA) has said that spending substantial and significant time with a child doesn’t necessarily mean equal time. Spending time with the child isn’t the only consideration. Many factors can affect a court’s decision. This case shows how important it is to get legal advice. We can help you work through the issues and find a solution.