Prior to any Court Order being made, each parent of a child who has not attained the age of 18 years has parental responsibility for the Child. This applies whether the parents are separated or remain in a relationship.
Section 61B of the Family Law Act 1975 (Cth) defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Parental responsibility can be divided into “day to day issues” and “long-term decisions”. Day to Day issues are decisions such as what the child is to wear, what to eat, what activities the child will do on that day for example. The Family Law Act 1975 (Cth) expressly provides that once a parenting orders has been made, the parents do not need to consult each other about day to day issues.
– your child’s name;
– the school your child attends, or will attend;
– your child’s religion or culture;
– issues relating to your child’s health (for example, if your child needed to undergo surgery);
– where your child will live (if that means that it will be much harder for the child to spend time with one of their parents)
This is one of the types of Orders the Court can make in relation to parental responsibility. If an Order is made that the parties have Equal Shared Parental Responsibility then the Family Law Act 1975 (Cth) requires that the parents must consult with each other AND make a genuine effort to come a joint decision about the issue.
Section 61DA of the Family Law Act 1975 (Cth) requires the Court to apply the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility.
However the presumption can be rebutted if there are reasonable grounds to believe that a parent or person living with the child has engaged in child abuse or family violence.
Another example of where the Court has rebutted the presumption is where there is a high level of conflict between the parties and it has been found necessary to rebut the presumption of equal shared parental responsibility to shield the children from further conflict. In the case of H and H  FMCAfam 27, it was reiterated that it was not about punishing either parent but about the court doing the best that it can to protect the children’s interests.
More than 2 people can have equal shared parental responsibility; for example, there have been cases where a child’s father and maternal grandparents all have equal shared parental responsibility. If the Court makes an order for you to have equal shared parental responsibility with another person/people it means that you are required to make decisions in relation to major long term issues about the children jointly. One person cannot have the final say on a decision. If you and the other person (or people) can’t agree on a decision in relation to a major long term issue, you’ll need to go back to Court to have a judge decide.
It’s common for a couple going through a divorce to need advice on parenting arrangements (previously called child custody) if they have children. Even though your relationship with your partner has changed, if you have had children together, it’s generally in everyone’s best interest for you and your ex to agree on parenting arrangements that keep both parents involved in the children’s lives, as is appropriate for the children and practical for the parents. Read this following article for more information: Planning Parenting Arrangements During a Divorce.
For further information, or assistance with your own circumstances, please contact us here.