Parental responsibility is a topic that can often lead to arguments between separated parents. The issue of who has responsibility for children, decision making powers for children and the “final say” is often the reason why parents approach family lawyers to gain advice on their rights and entitlements in the parenting dynamics.

What is parental responsibility?

Parental responsibility is defined in Section 61b of the Family Law Act 1975 (“the FLA”) as “…All the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

More simply put, parental responsibility extends to the responsibilities of parents to meet the needs of their children and includes decision making power in relation to important parts of their upbringing. At a community level, the decisions which are usually encapsulated within the meaning of the definition are decisions relating to who cares for a child, medical care, education, schooling, religion, the child’s name, travelling, who the child spends time with and the like. As the law in relation to parental responsibility has been applied by judges there is consistency in the community perception of what parental responsibility means and the judicial application of the principal surrounding it.

Who has parental responsibility?

Both parents have parental responsibility for a child, unless there is an order of the Court stating otherwise. This is outlined in Section 61C of the FLA. This parental responsibility does not change when parents separate, divorce, marry or remarry.

An interesting and often referenced case in relation to this parental responsibility is the case of Goode and Goode (2006) FLC 39-286; [2006] Fam CA 1346 where it was stated that:

“Where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force”.

To summarise, parents can exercise parental responsibility by themselves individually, unless an Order exists stating that they do not have parental responsibility for certain things or have to share parental responsibility with the other parent.

It is important to note that even if there is a parenting order between the parties, unless that Order specifically provides for one parent to have parental responsibility, or joint parental responsibility, then Section 61Cof the FLA still prevails.

What is the “presumption of parental responsibility”?

The presumption of equal and shared parental responsibility is contained in Section 61DA of the Act. When the court makes a parenting Order the court must apply the presumption that it is in the best interests of the child if both parents have equal and shared parental responsibility for the child.

The presumption applies unless there has been abuse of a child related to the proceedings, family violence or in the case of an interim order, unless the court considers that it would be inappropriate to apply the presumption when making the Order.

This means that if the presumption applies, the parties must jointly make decisions and accept responsibility for the child together and can no longer do so independently and separately.

In summary, where there is no parenting order dealing with parental responsibility, the responsibility is held by the parents individually, and where there is an order, there is an presumption that the court will apply the presumption of equal and shared parental responsibility to the matter unless one of the exceptions are presented. The case and Good and Good summarised this well:

“Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the court otherwise provides”.

For more information about parental responsibility and how we can help you negotiate parenting arrangements, please feel free to contact us or book for a FREE 15-minute initial consultation with one of our senior lawyers!

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