What is equal share parent responsibility?

29-November-2010 Family Law By Simone Green

When you separate who makes the decisions about your children?

As a parent you have responsibility for your child. When couples divorce or separate, deciding who looks after the child is determined by what is in the child’s best interest. Equal shared parental responsibility is one arrangement in what is usually referred to as child custody.

Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.”

Parents automatically have parental responsibility for their children from birth. Unless there is a parenting dispute resulting in orders of the Court, each parent will continue to have equal shared parental responsibility for the child following separation or divorce.

Parental responsibility and making decisions with regard to the day-to-day conduct of the child’s life are often confused. It is usual for the parent who is caring for that child, at any given time, to be responsible for decisions with regard to the day-to-day welfare of that child. An order for shared parental responsibility, or child custody, does not mean that the other parent must be consulted on every minor issue in a child’s life.

Parental responsibility is a responsibility to make decisions in relation to the long term issues in a child’s life such as where the child lives, what medical treatment they will receive, educational issues such as where they will attend school, the nature and degree of religious upbringing, the child’s name, passports, and the child’s social conduct and interaction.

Significant changes were brought about with the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 in July 2006 (“The Amendment Act”). The Amendment Act saw a shift in the focus of the Court from the rights of parents toward the rights of children and the responsibility of parents.

The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. This cannot be confused with the additional consideration of equal time. The presumption for equal shared parental responsibility is rebutted in circumstances whether there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of that child) has engaged in:

  • abuse of that child; or
  • family violence.

The Court will not make an order for equal share parental responsibility if making that order would be contrary to the child’s best interest.

Orders relating to parental responsibility may be made on an interim basis in matters of urgency but the Court must disregard such an interim order when considering a final order to avoid prejudice against the other parent.

Social scientific studies have demonstrated that in situations where there is a high level of conflict between the parents, where consultation on significant issues relating to the child would place the other party or the child at risk of harm, it may be considered appropriate to award sole parental responsibility of the child to one parent.

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