​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.
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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.   
Please feel free to contact the author if you would like further information or assistance.

The first requirement is that the parties must be willing to be reasonable and honest with each other. Start by understanding that no one really wins in the family law courts. The family law courts apply a process that is rational and designed to manage disputes, but it is not a place to seek personal vindication for what happened during or after your relationship. Few people will find that sort of justice in the family law jurisdiction because it is not designed to identify who was in the wrong.
Once partners understand that being reasonable and honest with each other can pay big dividends in terms of cost savings and sanity, three main mechanisms can be used to reach binding voluntary settlements. These are:

• Binding financial agreements
  
• Consent orders made by the court at your joint request
  
• Binding child support agreements.

Binding Financial Agreements may be used by people who are about to start or who are already in a marriage or de facto relationship. They allow people to make arrangements about all or part of their financial settlement in the event of a relationship break down. They can also be used to finalise financial matters after a relationship ends.
Binding financial agreements can be made before, during or after a relationship and can cover a financial settlement (including superannuation), spousal maintenance and related issues. They can also be used as “prenup” agreements.
Generally, binding financial agreements are not expensive, but strict legal requirements must be met if they are to be effective. If those requirements are not met a binding financial agreement can be set aside by a court.
Binding financial agreements can save you a lot of time and money, but they have to be done well. A do it yourself approach can often prove very expensive.

Consent Orders are written agreements made between the parties that are approved by a court. Consent orders can deal with any form of property including superannuation, childcare arrangements and spousal maintenance. Once the parties reach agreement, draft orders are sent to the court and approved. But the court will only approve them if they are written as enforceable orders and providing they meet certain requirements. Sometimes these requirements mean that complex or unusual property cases are better dealt with through a Binding Financial Agreement. That last point is particularly critical where complex business structures are in use.

Binding Child Support Agreements are a little like binding financial agreements. They can be used by people who have children to make arrangements about all or part of the support each party will provide for the children. They are usually made after a relationship and can be used as an alternative to or with the Child Support Agency payment system.
Binding child support agreements can be used to cover issues including education, payment of medical expenses and related issues. Generally, they are not expensive, but strict legal requirements must be met if they are to be binding. If those requirements are not met a binding child support agreement can be set aside by a court. But, an intention expressed in an invalid binding child support agreement might still be enforceable in some circumstances, particularly if it provides evidence of a joint intention of the parents.

In most cases, the Family Law Act 1975 allows parents and parties to a relationship to decide for themselves how to manage the details and problems that arise at the end of their relationship. If you would like more information on how to avoid a family law horror story contact the author at Lawyers By The Bay.
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David Galloway
15 September 2019