In a recent decision of Lansa & Clovelly 
FamCA 80, Murphy J discussed at some detail the interplay between
parental responsibility conferred on a parent by virtue of section
61C of the Family Law Act 1975 and an order that confers
parental responsibility. In hopefully as concisely accurate as
possible, his Honour found (amongst other things) that:-
That section 61C conferred parental responsibility on a parent,
subject only to a court order to the contrary;
A parenting order which confers parental responsibility only
derogates from the parental responsibility conferred by the Act to
the extent to which the order relates;
When making a parenting order, there is a presumption that
parental responsibility be shared equally; although section 61DA
does not state that when applying the presumption, the court is
obliged to make an order conferring parental responsibility.
To those that have practised in family law since these
provisions commenced in 2006, these matters seems well settled,
even trite. Nevertheless, a close examination of the legislation
and his Honour's findings raise some interesting questions. In
no particular order, or exhaustively set out, are the
An order for "equal shared parental responsibility;"
that is, an order which gives effect to the presumption,
necessarily derogates from the legislative conferral of parental
responsibility in section 61C because in order to exercise that
responsibility a parent must not prevent the other parent from
exercising the same responsibility.
A parent does not have the right to absolve him/herself of
parental responsibility unless and until there is an order to that
effect, and only to the extent of the order. Given that
responsibility is defined in section 61B as, amongst other things,
duties prescribed by law, there seems to be a positive obligation
on parents to assume that responsibility and undertake those
duties. Does that mean a failure to do so is a breach of the Act
actionable against that parent? Can the Family Court operate to
sanction parents who do not fulfil their parental responsibilities?
Division 13A of Part 7 of the Act is titled "Consequences of
failure to comply with orders, and other obligations, that
affect children" (emphasis added). Notwithstanding the
"other obligations," which might be the duties ascribed
to parental responsibility conferred by section 61C, none of
Division 13A refers to anything but a breach of an order made by
the court. So, despite conferral, and despite an intent of the Act
to bind parents to their responsibilities, there seems to be no
capacity of a court to require or enforce a parent to undertake the
duties with respect to parental responsibility, outside enforcing
an order made with respect to parental responsibility
It has generally been accepted that there is an inexorable
connection between section 61DA (applying the presumption) and
section 65DAA (mandatory consideration of equal time or substantial
and significant time). But is that so? A court may apply the
presumption when making a parenting order, but there is no
obligation to make an order for equal shared parental
responsibility consequential upon the application of the
presumption. Section 65DAA only "kicks in" when there is
an order conferring equal shared parental responsibility.
A court may apply the presumption and then decline to make any
order with respect to parental responsibility. It may be, for
instance, as is often the case, neither party disputes that each
party should share parental responsibility equally. In that
situation, the court may not make an order and therefore not be
obliged to consider an equal time order (or substantial and
significant time order) pursuant to section 65DAA.
In our view, the question of parental responsibility in each
case will often require detailed analysis, even if both parents are
content to share it equally. A very detailed analysis and a careful
case plan is required to ask the court to make an order conferring
parental responsibility, especially one which is not equally
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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