What happens to your kids after a divorce or separation? Who bears the responsibility of making important decisions in their lives?
Well, in many cases, it’s actually the Family Court that decides if it’s best for your children to have both parents share parental responsibility or whether just one parent have sole parental responsibility.
Let’s define parental responsibility first.
Parental responsibility refers to all the duties, powers and authority the law gives parents to make long-term decisions for your children.
These laws take into account considerations such as plans and actions regarding each child’s well-being including their education, medical treatment, lifestyle and home life.
What is considered a major long-term decision?
A long-term decision regarding children includes essential issues that have a significant influence on the life of children such as their care, welfare, upbringing and development.
Often, such major long-term decision regarding parental responsibility involves:
- Name – What will the child be called? Who gets to register their name?
- Education – Where will the child go to school? What kind of education is best?
- Religion – What kind of beliefs should the child be exposed to?
- Health – The child having an operation or significant medical treatment?
- Home and relocation? – Where will the child live? Can the child will leave the country or not?
This list can extend as your children grow.
For instance, other decisions which parents like you might need to address in the future include recreational activities or psychiatric or psychological treatment.
What happens when you and your former partner have equal shared parental responsibility?
For equal shared parental responsibility, both parents have a say in making major long-term decisions. It means you and your former partner need to consult each other and make a genuine effort to arrive at a joint or mutual decision.
In other words, you have a joint parental responsibility to care for your children.
How about sole parental responsibility?
Sole parental responsibility, on the other hand, is a parental responsibility order that allows for only one parent to make major long-term decisions for children.
Sole parental responsibility may be considered appropriate in situations where:
- There has been abuse or there is a risk of abuse to the children
- A parent has perpetrated family violence against the children, or the children have been exposed to family violence
- There is a risk of harm to the children
- It is impractical for both parents to share decision-making for the children
- There is an inability of the parents to communicate to such an extent that the children would be affected because decisions would likely to be unable to be made when necessary
- A parent is not contactable
- A parent has chosen to be absent from the children’s life or chosen not to consult with the other parent in making decisions
What is the common presumption about equal shared parental responsibility you should know?
In cases where there are no parenting orders or plans in place, it is presumed to be in the best interests of your children for both their parents to have equal shared parental responsibility.
If a parenting matter is brought before the Court, the presumption is also applicable unless the Court orders otherwise.
Such presumption stands to encourage positive co-parenting – allowing you and your former partner the ability to be involved together, consult with each other and have an equal contribution in the long-term decision making of your children.
Take note, however, that this presumption of equal shared parental responsibility only works for the direct parents of the children. Nevertheless, a person who is not a parent of a child can still apply to the Court for parenting orders.
When is the presumption of equal shared parental responsibility not applicable?
The presumption of equal shared parental responsibility comes with exceptions. It can’t be implemented if there are reasonable grounds to believe that a parent (or person who lives with a parent) has:
- engaged in abuse of the child or another child who was a member of the parent’s family
- engaged in family violence
- when making an Interim Order, the Court considers it would not be appropriate to apply the presumption
- the Court is satisfied it is not in the best interests of the child
What about equal care arrangement?
Once a Court Order has been made for equal shared parental responsibility, you must keep in mind that the presumption of equal shared parental responsibility relates only to the allocation of parental responsibility – not the amount of time the children should spend with each parent.
A Court will not issue a Parenting Order for the children to spend equal time with both parents or have an equal care arrangement, simply because they have made a Court Order for equal shared parental responsibility.
However, if an Order is made for equal shared parental responsibility, the Court must consider these factors:
- Whether the children spending equal time with each parent is in their best interests
- Whether the children spending equal time with each of the parents is reasonably practicable
- Whether the children spending substantial and significant time with each parent would be in their best interests
- Whether the child spending substantial and significant time with each parent is reasonably practicable
If in doubt, always seek legal advice about parental responsibility.