The Family Law Act refers to parents having "parental responsibility" for the children of their relationship and the court may by Order, provide for that parental responsibility to be "equal shared" (that is, shared by the parents) or "sole" (that is, exercised by one parent). There is a presumption that when a court makes an Order, it will make an Order for "equal shared parental responsibility" for parents of a child unless there is an exception. So it is important that parties understand what is meant by the term "parental responsibility", be it equal shared or sole, and why it is important in a Family Law context.
Parental responsibility means all the duties, powers, responsibilities and authority which by law, parents have in relation to 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). The Family Law Act allows for a default position of each parent having parental responsibility unless otherwise ordered by the court. If a court makes an Order for equal shared parental responsibility it means that the parents need to cooperate with each other and jointly make long term decisions (such as where the child should live and go to school, decisions concerning medical treatment and the religious upbringing of the child) but the day to day decisions will remain the responsibility of the parent who has care of the child at that time.
Although there is a presumption in favour of equal shared parental responsibility, it will not apply if a court is satisfied that a parent has engaged in abuse of the child, or family violence.
Should the court make that finding, or if the parents are unable to effectively communicate, it may order sole parental responsibility. This means that one parent is solely responsible for making the major decisions about the child as set out above, whilst each parent otherwise is responsible for the day to day decisions concerning the child whilst the child is in their respective care.
An Order for equal shared parental responsibility does not mean that a child will automatically spend equal time with both parents, although it is a consideration that a court must make if equal shared parental responsibility is ordered. A court will make Orders with respect to the child's time with each parent in accordance with the children's best interests and take into account a number of considerations under the Act. For further details regarding this issue, please see our blog " What will the Court Consider When Making Parenting Orders."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
