How the Court determines parenting matters – Step 2 Parental Responsibility

How the Court determines parenting matters – Step 2 Parental Responsibility

Who gets “Custody” and how “Parental Responsibility” is determined of a child is a question often asked of our Family Lawyers. In working through who makes decisions about the child, where the child lives and how much time they spend with the other parent or other persons the Court has long abandoned the terms “Custody” and Parental Rights”.  The child has all the rights.  The parents have all the responsibilities.  Today, the Court’s paramount consideration is the best interests of the child.  Over time the Family Law Courts have adopted a legislative pathway in determining parenting cases and this series of articles will briefly cover each step.

Parental Responsibility

According to the Family Law Act (“the Act”) all parents have parental responsibility which is not defined in the Act but orders relating to it give that person all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  Not a very helpful definition but this is what all parents have when their child is born.

Equal Shared Parental Responsibility

The Act states that when considering a parenting order in relation to a child there is a presumption that it is in the child’s best interests for the parents to have Equal shared parental responsibility.  This is different from parental responsibility and requires each parent to consult and jointly make decisions regarding major long term issues for the child.  Major decisions include:

  • Which school the child goes to.
  • What religion the child follows.
  • Medical decisions.

Non-major decisions such as what the child will have for dinner that night do not require consultation when there is an order for Equal shared parental responsibility.

Rebutting the presumption

However, the Court can rebut the presumption in special circumstances.  The presumption for equal shared parental responsibility does not apply:

  1. If there are reasonable grounds to believe that the parent of the child or a person who lives with the parent of the child has engaged in:
    • Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family).
    • Family violence (includes verbal abuse and financial abuse).
  2. If it is not in the child’s best interests.
  3. In Interim Proceedings in the Court before a case goes to a Trial.

In next week’s article we will be looking at the final step of the legislative pathway and how a Court decides how much time each parent spends with the child.  Parenting cases are a difficult and delicate type of family law case.  If you are having issues with another parent about parenting arrangements for a child, call our expert Family Law Team on 4324 7699.

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