‘Parental responsibility’ refers to the duties, powers and responsibilities that a parent has in relation to a child. This becomes an important consideration as you navigate the journey of co-parenting after separation.
Parental responsibility determines who makes long-term decisions about a child, such as what school a child attends, where a child lives and whether a child practices a religion. Section 65DAE of the Family Law Act 1975 (Cth) provides that parents are not required to consult on day-to-day issues (or issues that are not major long-term issues) – for example, what a child wears or what type of food a child takes in their lunchbox.
In the absence of a Court Order determining parental responsibility, there is a presumption that both parents have ‘equal shared parental responsibility’ (also referred to as ‘ESPR’). ESPR requires that parents consult with each other about any long-term decision to be made, and make a genuine effort to come to that decision jointly.
This presumption is set out in section 61DA of the Family Law Act. The presumption of ESPR does not apply if there are reasonable grounds to believe that a parent of a child has been abusive towards that child (or another child in the family), or if they have engaged in family violence, including towards the other parent.
If there is enough evidence to satisfy a Court that an order for ESPR is not appropriate in the circumstances, the Court may make an order for ‘sole parental responsibility’. A Court may consider that an order for sole parental responsibility is appropriate if the parents are unable to make decisions jointly, or if the communication between the parents would make an order for ESPR untenable.
On a final basis the Court must disregard any orders made on an interim basis about the allocation of parental responsibility. This means if your matter is in Court and an order has been made for ESPR on an interim basis, the Court may ultimately decide that ESPR is not appropriate on a final basis.
It is also important to understand that parental responsibility does not determine what time a child spends with each parent. An order for ESPR does not automatically mean that a child will spend equal time with each parent. Courts will consider what is in a child’s best interests and whether an equal time arrangement would be reasonably practicable, among other things.
If you are unable to reach a joint decision about a major long-term issue regarding your child, or if you are concerned about sharing parental responsibility with your former spouse, you should contact a family lawyer to better understand your rights and obligations. If you are ready to book an initial appointment with a specialist family lawyer in Canberra, contact us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.
Author: Anika Buckley