The Family Law Act refers to parents having "parental
responsibility" for the children of their relationship
and the court may by Order, provide for that parental
responsibility to be "equal shared" (that is,
shared by the parents) or "sole" (that is,
exercised by one parent). There is a presumption that when a court
makes an Order, it will make an Order for "equal shared
parental responsibility" for parents of a child unless
there is an exception. So it is important that parties understand
what is meant by the term "parental
responsibility", be it equal shared or sole, and why it
is important in a Family Law context.
Parental responsibility means all the duties, powers,
responsibilities and authority which by law, parents have in
relation to children. This includes not only day to day decisions
(such as what the child should eat, what the child should wear and
their everyday activities) but also long term decisions (such as
education, health and religion). The Family Law Act allows for a
default position of each parent having parental responsibility
unless otherwise ordered by the court. If a court makes an Order
for equal shared parental responsibility it means
that the parents need to cooperate with each other and jointly make
long term decisions (such as where the child should live and go to
school, decisions concerning medical treatment and the religious
upbringing of the child) but the day to day decisions will remain
the responsibility of the parent who has care of the child at that
Although there is a presumption in favour of equal shared
parental responsibility, it will not apply if a court is satisfied
that a parent has engaged in abuse of the child, or family
Should the court make that finding, or if the parents are unable
to effectively communicate, it may order sole parental
responsibility. This means that one parent is solely responsible
for making the major decisions about the child as set out above,
whilst each parent otherwise is responsible for the day to day
decisions concerning the child whilst the child is in their
An Order for equal shared parental responsibility does not mean
that a child will automatically spend equal time with both parents,
although it is a consideration that a court must make if equal
shared parental responsibility is ordered. A court will make Orders
with respect to the child's time with each parent in accordance
with the children's best interests and take into account a
number of considerations under the Act. For further details
regarding this issue, please see our blog "
What will the Court Consider When Making Parenting
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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