Parents, during relationships, tend to make decisions about their children together. This will also commonly continue after parties separate but many family law parenting disputes are about how such decision-making powers should be divided.
The power to make decisions about a child is called Parental Responsibility. Parental Responsibility is given a wide definition in the law and is defined at s.61B of the Family Law Act 1975 (Cth) as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61C of the Act says all parents have Parental Responsibility for the child. This is based on the assumption that parents should jointly agree upon the future parenting of their children.
This is the norm until there is a dispute and there is consideration of what parenting orders should be made. In determining a parenting order Section 61DA of the Act provides that there is 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”. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.
The Courts have held that explicit and cogent reasons are needed to rebut that presumption and allocate Sole Parental Responsibility to one parent. If parties have difficulty speaking to one another the conflict between them has to be intractable.
Despite the terminology, Equal Shared Parental Responsibility (“ESPR”) does not provide for a presumption about how much time a child should spend with either parent. It does require the Court to contemplate the children spending equal time or if that is not in the child’s best interest or is not reasonably practicable significant and substantial time but this is a separate inquiry.
Once an order for ESPR is made Section 65DAC of the Act requires parties to consult and make joint decisions about major long-term issues for a child. Long-term decisions are issues about the care, welfare and development of the child of a long-term nature and include (but are not limited to) issues of that nature about:
- the child’s education (both current and future); and
- the child’s religious and cultural upbringing; and
- the child’s health; and
- the child’s name; and
- changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 65DAE of the Act makes it clear that ESPR does mean parents have to consult and jointly make all decisions about a child, just major long-term decisions.
Disputes regarding the decisions relating to the care, welfare and development of children are complex cases and consideration needs to be given the triggering of other provisions if parental responsibility is allocated to both parents. Legal advice is essential if there is consideration of departing from both parents having Parental Responsibility.
If you require assistance in a parenting matter or other family law matter, please do not hesitate to contact our office at (02) 4944 3322.
