‘Parental responsibility’ under the Family Law Act

Jeremy Hogg, Lawyer, MST Lawyers

Parental responsibility is a vitally important, but often misunderstood concept underpinning the care of children under the Family Law Act 1975 (‘the Act’).

For Australian parents, the amount of time a child lives with each parent is, on a practical level, a distinct and separate issue from the level of parental responsibility each parent has for that child.  While the family law courts (‘the Court’) are obliged to consider when making a parenting order the interrelation between parental responsibility and the time spent with each parent , this does not result in parents who have primary care of a child necessarily having greater parental responsibility for that child.

Unless there are court orders in place defining the parents’ respective responsibility for the child, each parent of a minor child is understood to automatically have parental responsibility for that child.  Parental responsibility may also be assigned by a court order, as being shared equally between the parents, being held solely by one parent, or with some aspects of responsibility being shared between parents and other aspects being under the control of a single parent.  Parental responsibility may also be awarded to persons who are not parents of a child, such as grandparents, step-parents or carers.

What is parental responsibility?

The Act defines parental responsibility as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.  Clearly this is a very broad definition and may not provide adequate guidance for parents struggling to understand their parenting obligations and responsibilities following a family breakdown.

Thankfully for parents though, some clarification is found in the Act regarding the types of issues which parents subject to orders for parental responsibility are obliged to consult with the other parent about, and the types of issues that do not require consultation.  The base position under the Act is that parents are not required to consult the other parent (or such other person with parental responsibility) about issues which are not considered to be major long-term issues; examples given of issues which fall into this category include what a child eats and what a child wears while in that parent’s care. The Act also specifies that the decision of a parent to form a relationship with a new partner is not in and of itself a major long-term issue, unless the re-partnering brings with it changes for the child which could be considered major long-term issues (such as a relocation of residence to a regional area or interstate).

Major long-term issues are also defined in the Act, as ‘issues about the care, welfare and development of the child of a long-term nature’.  A non-exhaustive list of such issues is given as including:

1. Current and future education;
2. Religious and cultural upbringing;
3. Health;
4. The child’s name; and
5. Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

How is parental responsibility determined in parenting proceedings?

Under the Act there is a very strong preference towards parents having equal shared parental responsibility for children.  Situations where a parent is awarded sole parental responsibility to the exclusion of the other parent are rare and only occur in exceptional circumstances, such as where the Court is satisfied that the very high level of conflict between the parents will result in it being impossible for any consensus to be reached regarding significant issues about the child’s care, to the child’s detriment.

The Act requires a Court, when making a parenting order, to apply a presumption that it is in the best interests of a child for their parents to have equal shared parental responsibility for that child.  This means that the court’s starting point must be that equal shared parental responsibility will apply unless it can be shown that it is not in the child’s best interests for this to be the case.  The presumption does not apply, however, where there are reasonable grounds to believe that a parent of the child (or another person who lives with a parent of the child) has engaged in abuse of the child (or another child who was a member of the parent or other person’s family) or family violence.

The presumption of equal shared parental responsibility does not, however, provide for an assumption that a child should spend equal time with each parent.  The conflation of equal shared parental responsibility and equal time spent with each parent is a common misconception, particularly by parents who have not previously been a child’s primary carer but following separation seek an equal shared care arrangement, and can be a source of misguided litigation.  While the Act does require the Court, where it is making an order for equal shared parental responsibility, to consider whether it would be in the best interests of the child and reasonably practicable for orders to be made providing for the child to spend equal time with each parent, this does not have the same effect as imposing a presumption that this be the case.

If you are considering separating or have separated and require assistance with formalising or negotiating parenting arrangements, please contact our Family Law team by email family@mst.com.au or by telephone +613 8540 0200.