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Parental responsibility is a frequently used term in family law, but what does it really mean and why is it important when making decisions in relation to parenting matters.

What is Parental Responsibility?

The Family Law Act 1975 defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”. This includes not only day to day decisions (such as what the child should eat, what the child should wear and their everyday activities) but also long-term decisions (such as education, health and religion).

Unless there is an Order to the contrary, parents have joint parental responsibility for children. This requires parents to consult each other and agree on significant long-term decisions involving their children. Whilst this does not usually present difficulties for parents who remain in a relationship, (as they will generally work as a family unit consulting with each other in relation to decisions for the children); it can create difficulties for separated parents.

Why is it important in Family Law?

Presumption of Equal Shared Parental Responsibility

Pursuant to the Family Law Act there is a presumption that it is in the children’s best interests for the children’s parents to have equal shared parental responsibility.

Rebutting the Presumption of Equal Shared Parental Responsibility

This presumption may be rebutted in limited circumstances. Examples of where the presumption may be rebutted include:

  • Where the Court is satisfied that a parent has engaged in abuse of the child, or family violence.
  • Parents are unable to effectively communicate with each other.
  • One parent has failed to fulfil their duties as a parent or be actively involved in the children’s lives.
  • Parents have vastly different parenting styles, which will result in ongoing conflict between the parents.  If an Order is made for equal shared parental responsibility the Court must consider whether a shared care arrangement is in the best interests of the children and whether it is reasonably practical.

Parental Responsibility and Relationship to the Living Arrangements for Children

If an Order is made for equal shared parental responsibility the Court must consider whether a shared care arrangement is in the best interests of the children and whether it is reasonably practical.

It is important to note that an Order for equal shared parental responsibility does not automatically mean a shared care arrangement (or arrangements for significant and substantial time) will be ordered for the children, when making Orders with respect to the living arrangements for children, the Court’s paramount consideration remains the best interests of the children.

Can only Parents have Parental Responsibility for Children?

In certain circumstances a Court can order that a non-parent have parental responsibility for a child.  The Family Law Act allows parenting orders to be made in favour of not only parents but also grandparents, relatives and other individuals concerned with the care, welfare or development of a child or children. Orders for parental responsibility in favour of a ‘non-parent’ are usually made in circumstances where there are Orders for the children to live with the ‘non-parent’.

How McLachlan Thorpe Partners Can Assist

If you are having difficulties with a former partner or spouse and want more information in relation to parental responsibility or have questions in relation to arrangements for your children, please contact the Family Law Team.

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