The allocation of parental obligations is one issue to consider while deciding on appropriate parenting arrangements after a breakup. Parents may be unsure about the notion of “parental responsibility” and how it is determined in family court cases.
What exactly does parental duty entail?
Parental responsibility is a vital concept in parenting. Australian law defines it clearly. Section 61B of the Family Law Act 1975 explains parental responsibility. It means all the duties parents have for children. It also means all the powers parents have. It includes all their responsibilities. It covers their legal authority too.
Certain decisions about a child are major and long-term. These decisions need agreement from the person holding parental responsibility. This rule applies to the child’s education. It applies to religious upbringing. It applies to cultural upbringing. It applies to the child’s health. It applies to the child’s name. This rule also applies to changes in living arrangements. These changes must be significant. They must make it much harder for the child to see one parent.
Court rulings may award parents shared or sole decision-making authority in the case of substantial long-term challenges. As a result, one parent may be fully responsible for making certain decisions (such as education), while the other parents share parental responsibility for all other key, long-term concerns (such as religion and health).
Each parent of a child under the age of eighteen has parental responsibility for the child by default, unless the court orders otherwise. This remains true regardless of whether the parents have remarried or separated. A person who is not a parent, such as a grandparent, may apply (and obtain) an order for parental responsibility, as may “any other person concerned with the care, welfare, or development of the child.”
Parental responsibility, time management, and living circumstances
“Live with arrangements” and “spend time arrangements” are two more essential terms in parenting that refer to the arrangements under which a child lives or spends time with a parent or another individual.
Crucially, there may be a clash between parental responsibilities and living arrangements. Even if a parent does not spend time with their child, they may still retain parental responsibility for them. In the absence of court orders, the other parent retains parental responsibility for the kid, which may occur in cases when one parent has basically been a single parent. In such cases, the “single parent” may seek exclusive parental responsibility for the child from the court. Similarly, even if an order assigns sole parental responsibility to one parent, the court may mandate that the kid live or spend time with the other parent.
It is a prevalent misperception that shared parental responsibilities imply that both parents would spend equal time with their children. This is not the case, as determining proper living arrangements is a separate matter for the court.
Joint parental accountability
The Family Law Amendment Act of 2023, which goes into effect on May 6, 2024, significantly alters the function and significance of shared parental responsibility. The following is a comparison of how the notion of shared parental responsibility applies before and after May 6, 2024.
Joint parental accountability Prior to May 6, 2024
Australian family law has an important rule. Courts often start with an assumption. They assume equal shared parental responsibility is best for children. This rule is about decision-making responsibility. It is separate from the time a child spends with each parent.
This assumption does not always apply. It does not apply if family violence occurred. It also does not apply if child abuse happened. This violence or abuse might involve a parent. It might involve someone living with a parent. The court can also reject this assumption. This happens if evidence shows equal responsibility is not best for the child.
Equal shared parental responsibility means both parents must work together. They must discuss major long-term issues. They must try hard to agree on these important issues. Parents do not need to discuss minor matters. They only need to discuss significant long-term concerns.
If the court uses the equal responsibility assumption, it must consider the child’s time. It must decide if equal time with each parent is best. It must decide if “substantial and significant” time is best. Remember, equal shared responsibility is about decisions. It does not mean the child must spend equal time with each parent.
From 6 May 2024 onwards
Rather than assuming equal shared parental responsibility, the court will be able to assess what type of parental duty is best for the child. Unless otherwise specified in the order, both parents will continue to share parental responsibility for their kid or children.
When evaluating what is in the best interests of a child, the court considers the following factors:
- Which arrangements would ensure the child’s protection as well as the safety of every caregiver, regardless of whether the caregiver is the child’s parent?
- any ideas the child may have expressed;
- the child’s developmental, psychological, emotional, and cultural needs;
- Each individual who has or is indicated to have parental responsibility for the child must be able to address the child’s developmental, psychological, emotional, and cultural needs;
- the benefit for the youngster of being able to build interactions with their parents and other key persons when it is safe to do so; and
- anything else relevant to the child’s individual condition.
The court retains the authority to order shared decision-making for the remaining concerns and sole parental responsibility for certain major long-term issues. Furthermore, the court retains the right to issue an order giving joint parental responsibility for any serious, long-term issues.
The new section 61DAA requires the parties to consult with the other person with joint responsibility and make a genuine effort to establish a joint conclusion if the court orders joint decision-making on any or all issues. But this does not imply that someone else (such as a doctor or a school employee) must demonstrate that the decision was made cooperatively before acting on it.
Conclusion
The primary problems in parenting settings are “spend time” and “live with” arrangements, as well as parental responsibilities. Knowing who can exercise parental responsibility for certain concerns, as well as when and how decisions should be made together, is an important component of co-parenting and vital for reaching effective parenting resolutions.or reaching effective parenting resolutions.