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Parental Responsibility,
Equal Shared Parental Responsibility
What Happens if Parents Cannot Agree
Understanding the difference between parental responsibility and Equal Shared Parental Responsibility as
defined in the Family Law Act 1975 (CTH) (the Act) is important in working together as separated parents and to
assist in managing disputes where you cannot agree.
What is Parental Responsibility?
Usually, when a child is born, the child’s biological parents assume responsibility for decision making. These decisions commence from the first day of a child’s life, whilst the child is still in hospital, when parents make medical decision for tests etc. The ability to make those decisions is provided under “parental responsibility”.
s. 61B of the Family Law Act 1975 (CTH) (the Act) provides that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
s. 61C of the Act states that each parent of a child who is under the age of 18 has parental responsibility, regardless of changes in the nature of the relationship of the parents, for example whether or not they are a family unit.
Whilst in an intact family unit it is not uncommon for parents to make decisions without the other parent’s explicit consent. For example, one parent taking a child to the doctor and consenting to a medical procedure such as vaccination, without the other parent.
Equal Shared Parental Responsibility
Parental Responsibility under s. 61C of the Act can only be disturbed by a Court Order. The Act provides a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility for major-long-term issues.
The presumption can be rebutted where there are incidences of child abuse and family violence, or where it would not be in the best interests of the child for the presumption to apply. There must be sufficient evidence to rebut the presumption and the reasons for the presumption not to apply must be explicit and persuasive.
When making a decision in relation to a child of Aboriginal or Torres Strait Islander background, in addition to the above the Court must also consider kinship obligations and child-rearing practices of the child’s Indigenous culture.
In short, the effect of an Equal Shared Parental Responsibility order:
In the matter of Goode v Goode the significant difference between “parental responsibility” and “equal shared parental responsibility” was outlined providing that:
“Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal share parental responsibility, the major decisions for the long-term care must be made jointly, unless the Court otherwise provides”
If there is an Order for Equal Shared Parental Responsibility does that mean that we have to have Orders for Equal Time?
No, an Order for Equal Shared Parental Responsibility is not an Order for equal time.
Under the Act, the Court must consider equal time where they make an Order for Equal Shared Parental Responsibility, however it is not required to make an Order for equal time unless that is also in the best interests of the child.
What happens when parents cannot agree
In accordance with the standard Court processes and procedures, unless there is an issue of significant urgency, or a matter meets the exemption criteria, parties must attempt mediation and obtain a s60I Certificate prior to commencing proceedings. As lawyers, we are obliged to provide all clients with information regarding non-court based services.
If following mediation, the matter is still unresolved, having complied with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, either party can make an Application to the Federal Circuit Court and Family Court of Australia to request the Court make a decision in respect to the item in dispute. Depending on the nature of the dispute this may need to occur urgently.
Author: Nicole Tabone
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