In relation to a child, parental responsibility means all the duties, powers, responsibilities, and authority which, by law, parents have in relation to their children.
Exercising Parental Responsibility involves making a decision about a major long-term issue such as the child’s education, religion, culture, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.
Many people refer to parental responsibility as ‘custody’. However, Australian family law has not referred to custody since 2006.
Equal shared parental responsibility
The Family Law Act 1975 currently presumes that it is in the best interests of the child for the parents to have equal shared parental responsibility. This means that the child’s parents must consult with one another about major long-term issues.
It is important to note that having equal shared parental responsibility does not mean that the child will spend equal time with each parent.
The presumption will no longer exist from 6 May 2024.
Sole parental responsibility
The presumption of equal shared parental responsibility does not apply if 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.
This presumption may be rebutted by way of evidence that satisfies the Court that it would not be in the best interests of the child. When this occurs, the Court may assign sole parental responsibility to one of the parents.
The Court is more likely to assign sole parental responsibility in cases where there is significant conflict between the parents or one of the parents lacks the capacity to care for children. That parent may make all decisions relating to the child, including major long-term issues, without consulting the other parent.
The Court usually assigns this to the parent with whom the child lives.
The best interests of the child
When the Court makes orders relating to children, it regards what is in the best interests of the child as the paramount consideration. At present, the primary considerations that the Court will take into account when deciding what is in the best interests of the child are:
- the need to protect the child from physical and psychological harm from being subjected or exposed to abuse, neglect, or family violence; and
- the benefit to the child of having a meaningful relationship with both of the child’s parents.
Although the Court will take both of these considerations into account, it must give greater weight to the protection of the child.
The Court will also take other considerations into account when it makes parenting orders. We can advise you of the considerations that relate to your circumstances.
From 6 May 2024, the Family Law Act 1975 will undergo significant changes. It is therefore important to seek legal advice if you have any concerns about how parental responsibility relates to you and your child.
Next steps
If you have any concerns about continuing to play an active role in your child’s life following separation, please contact our office via email at legal@lincolnchambers.com.au or telephone on 1300 546 200 to speak with one of our friendly lawyers. Please visit our family law page for more information.