The Family Law Amendment (Shared Parental Responsibility) Act 2006 heralded substantial changes to the way in which parenting disputes were to be determined in Australia. In the Explanatory Memorandum to the amending Act it was noted the changes hope to:
“support and promote shared parenting and encourage people to reach agreement about parenting of children after separation…”[i]
Although concepts of parental responsibility and shared parental responsibility were not new to the legislation or the Courts in 2006, the amendments introduced a rebuttable presumption that in all parenting matters, equal shared parental responsibility applied – unless it was established to be not in the best interests of a child (i.e. rebutted); or there was reasonable grounds to for the Court to believe that a parent of the child had engaged in family violence.[ii]
What is Parental Responsibility?
Parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which by law parents have in relation to children.[iii]
This definition hasn’t been significantly expanded upon by the Courts and remains a somewhat abstract concept. In a judgement by Carmody J, His Honour said:
“…apart from the primary duty to maintain and the authority to make decisions relating to the care, welfare and development of the child, the precise scope of parental responsibility is undefined.”[iv]
Essentially, parental responsibility is the responsibility to provide love and emotional support, teach children right from wrong, and ensuring their needs (including educational needs) are met. It includes, but is not limited to, making decisions for children with respect to where a child lives, medical treatment, education, religious upbringing, a child’s name or change of a child’s name, social interactions, protection from harm, travel and children’s passports and marriage of children under 18 years.[v]
When does the Family Court become involved in Parental Decisions?
The Family Law Act 1975 provides that each of a child’s parents under 18 years have parental responsibility.[vi] Thus the starting position is that parents each have and share parental responsibility.
The need for a court to allocate parental responsibility occurs when parents have a dispute over some aspect of making decisions for their children, and parental responsibility is only diminished to the extent that an Order of the Court specifies. The Full Court of the Family Court has made it clear that limiting parental responsibility should only occur where the circumstances warrant it:
“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 married, never lived together or separated so long as there was no contrary Order in force…”[vii]
So …what is equal shared parental responsibility?
In the case of Goode and Goode (2006) FLC 93-286 the court examined whether there was any difference between the parental responsibility parents automatically have (discussed above)[viii], and an Order for equal shared parental responsibility i.e. the above “rebuttable presumption” introduced in 2006.[ix]
The Court determined there was a distinction.
The distinction is that when parental responsibility is not allocated by an Order (such as an Order for equal shared parental responsibility via the presumption), parents may still exercise their responsibilities independently.
When an Order for equal shared parental responsibility is made it requires that certain decision for children must be made jointly.[x]
What are the parenting decisions that must be made jointly?
Decisions that must be made jointly with respect to children are those that concern “major long-term issues”.[xi] This requires parents to:
- Consult with respect to the decision to be made;
- Make a genuine effort to come to a joint decision;
- Make the decision jointly.
Major long-term issues are defined as issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about the child’s education, religious and cultural upbringing, health, a child’s name; and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[xii]
In terms of the day to day decisions for children such as what a child eats, what time they go to bed, what they can watch on TV, or the video games they play etc, these decisions don’t need to be made jointly, and can be made by the parent with whom the child is with at the time, without consultation.[xiii]
Another effect of the rebuttable presumption of equal shared parental responsibility is that when the section[xiv] applies, and is not rebutted, it creates a mandatory pathway for the judge to consider “equal time” first, then “substantial and significant time” second and lastly “other time”, if the first two are determined to be not in the best interests of a child or not reasonably practicable.[xv]
For more information on “equal time” arrangements I have examined this in my Equal time blog click to access.
Conclusion and significance of equal shared parental responsibility
Apart from the significant of equal shared parental responsibility requiring a Judge to consider equal time first, it also requires that parents readily embrace the involvement of the other parents in a child’s life.
This is consistent with the rights of children set out in the legislation which includes ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives (consistent with their best interests); and having the right to know and be cared for by both of their parents.
It is also consistent with advancing the obligations on parents towards their children, including, ensuing parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and that parents should agree about the future parenting of their children.[xvi]
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[i] Repeated in 5th Ed Master Family Law Guide 4-000
[ii] Section 61DA Family Law Act 1975
[iii] Section 61B Family Law Act 1975
[iv] W v G [No1] (2005) FLC 93-247 at 80,049
[v] 5th Ed Master Family Law Guide 4-020
[vi] Section 61C(1) Family Law Act 1975
[vii] Goode and Goode (2006) FLC 93-286 and Section 61D(2) Family Law Act 1975
[viii] Sections 61B, 61C and 61D Family Law Act 1975
[ix] Section 61DA(1) Family Law Act 1975
[x] Goode and Goode (2006) FLC 93-286 at
[xi] Section 65DAC(1)(b) and (2) Family Law Act 1975
[xii] Section 4 Family Law Act 1975
[xiii] Section 65DAE Family Law Act 1975
[xiv] Section 61DA Family Law Act 1975
[xv] Section 65DAA Family Law Act 1975
[xvi] Section 60B Family Law Act 1975