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 crucial concept in parenting, defined as “all duties, powers, responsibilities, and authority which, by law, parents have in relation to children” under Section 61B of the Family Law Act of 1975.

Any “major long-term decisions” regarding a child, such as the child’s education, religious and cultural upbringing, health, name, and any changes to the child’s living arrangements that make it much more difficult for the child to spend time with one of their parents, must be made by the person with parental responsibility for the child.

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

The Family Law Act allows the court to apply a presumption that “equal shared parental responsibility” is in a child’s best interests. This presumption is unrelated to how much time a child spends with each parent.

In some situations, the presumption of equal shared parental responsibility does not apply, such as where there are reasonable grounds to assume that a parent of the kid (or someone living with a parent of the child) has engaged in family violence or child abuse. The assumption can also be rebutted by evidence that convinces the court that equal shared parental responsibility is not in the child’s best interests.

Equal shared parental responsibility requires each person to whom the order applies to confer with the other on “major long-term issues” and make a genuine attempt to reach a joint decision on the relevant issue. There is no need to consult on matters that are not significant long-term concerns.

If the presumption of equal shared parental responsibility exists, the court must decide whether it is in the child’s best interests to spend equal time or substantial and significant time with both parents. However, the concept of equal shared parental responsibility does not generate a right or imply equal time.

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:

1. 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?
2. any ideas the child may have expressed;
3. the child’s developmental, psychological, emotional, and cultural needs;
4. 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;
5. 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
6. 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.