When you and your partner separate, there can be a big shift in how you care for the children in both the day-to-day routine and in the long-term. In some families, one parent can be predominantly responsible for arranging and taking the children to appointments, such as dentist check-ups and routine GP visits. In other families, parents share the responsibility for arranging and taking the children to these appointments.
When presented with a medical issue, it can be difficult when you and your former spouse do not agree about the proposed treatment or care for your child. Where no Court Orders exist or setting out who has parental responsibility, there is a presumption that you and your former spouse have ‘equal shared parental responsibility’ (“ESPR”) for the children. This means that you must consult with each other and endeavour to reach agreement about any long-term decisions, such as schooling, religious practices or medical treatment.
The presumption of ESPR may not apply if the Court has reasonable grounds to believe that a parent has engaged in the abuse of a child or engaged in family violence. The presumption can also be rebutted if the Court deems it would not be in the child’s best interests for parental responsibility to be shared between parents.
When treating a child, medical professionals generally require the consent of a parent (or someone who has parental responsibility for that child). In some instances, where a medical professional considers that a child understands the nature and consequences of a proposed treatment, that child can proceed with the proposed treatment or procedure. The medical professional would take into account matters including the child’s age and maturity, their ability to understand the medical advice provided, and the implications of undergoing the proposed treatment.
It is important to note that in some instances, a child is not able to make their own decision about treatment and a Court Order could override their decision.
In the case of an emergency, you are able to provide consent for your child’s treatment if you present to an emergency department with that child. If a medical emergency occurs whilst a child is in your care, you should still endeavour to consult the other parent (to the extent that you can) and keep them informed about what is happening and the next steps.
Where there is no medical emergency, decisions about long-term medical care should be made jointly where there is a presumption of ESPR (or a Parenting Plan or Court Order which states you have ESPR). Where you cannot agree about proposed treatment and there are no circumstances of urgency, you should consider attending dispute resolution (or if that is unsuccessful, you may need to consider applying to the Court).
If you are concerned about a proposed treatment for your child or if you are worried that your former spouse is not following reasonable medical advice or recommendations, you should seek legal advice to understand your rights. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Anika Buckley