There is a presumption in Australian law that parents have equal shared parental responsibility for their children. That presumption is intended to encourage joint parenting by giving each parent a say in, and responsibility for, long term decisions about the children.
The presumption of equal shared parental responsibility can be overruled by the Court but, unless a relevant court ruling has been made, parents are presumed to have a more a less equal say in important decisions affecting the children.
Under the Family Law Act, the presumption applies to a person who is the parent of a child under the age of 18; including adopted children. It can also apply to a person who acts like a parent to a child but is not a biological or adoptive parent. The presumption applies to all matters relating to the care, welfare and development of a child such as education and health. That means a person with shared parental responsibility for a child must be consulted on all major decisions that affect the child.
The presumption of parental responsibility cannot be lightly removed and is often unaffected by changes in the relationship between parents, such as re-marriage, separation, or divorce. However, it is subject to limitations.
For example, an absent parent need not be consulted if to do so is impractical. The obligation placed on each parent is to make a genuine effort to consult with the other parent before making decisions involving major long-term issues concerning the child. There is no absolute obligation on a parent not to make a decision unless the other parent has been consulted.
Also, the obligation to consult does not apply to day-to-day activities such as bedtime or meals. Those decisions can be made by the parent who has custody of the child on that day. Most importantly, the presumption does not apply if a parent has been involved in child abuse or violence towards a member of the family of either parent. In those situations, the Court will determine how parental responsibility is to be split between the parents based on the child’s best interests.
Parental responsibility is different from the time a child spends with each parent after they have separated, but sometimes a Court has to make an order that one parent can exercise particular types of decisions on their own because of the time they spend looking after the child. In making such an order, the Court will consider factors such as:
- the child’s best interests;
- how far apart the parents live from each other;
- how well the parents communicate with each other and with the child;
- whether a parent can fulfil their obligations to the child;
- whether the child needs to be protected from harm; and
- other relevant factors.
If one parent wants to assume full or a major part of the parental responsibility obligation, the parents must try to engage in mediation unless there has been abuse, family violence or a refusal to mediate.
If mediation fails or is not required, a parent may make an application to the Court for orders that override or modify shared parental responsibility. The process of obtaining those orders is often sped up by strategies that include expert reports and the appointment of an Independent Children’s Lawyer to put a view to the court on what is best for the child.