Parenting is rewarding but it is rarely easy. It can be made even more challenging when you and your child’s other parent are not in a relationship.
Whether you’ve recently separated from your child’s other parent, or you were never in a long-term relationship with them, chances are that as parents you’ve had disputes arise between you.
When it comes to parenting after separation, disputes regarding living arrangements and being able to spend time with your children are common. There is also a common misconception that as a parent you have certain rights by law to be able to control these aspects, however, the family law system, governed by the Family Law Act 1975, affords rights to children and responsibilities for the parents to children.
What does this mean for you as a parent? In this article, we’ll discuss the concept of parental responsibility in Australian family law. We’ll also discuss the rights of the child and how this impacts your responsibility as a parent.
Parents rights, responsibilities, and the law
The Family Law Act 1975 is the main legislation of the Australian Family Law system and includes information about the various matters that may arise for families in Australia and how they should be handled, especially when disputes arise.
When parents of a child separate, they are often concerned about their rights, usually in relation to being able to see and spend time with their child. While the family law system in Australia certainly encourages meaningful relationships between parents and children, the parents do not have dominant rights in the legislation.
In parenting matters, children have rights and parents have responsibilities, these responsibilities are known as parental responsibility. Parental responsibility involves parents having the duty, responsibility, and authority to make major decisions for their children, such as those relating to the child’s health, education and living arrangements. The aim is that the parent’s responsibility to make these decisions is to ensure the child benefits from them rather than the parent.
What are the rights of a child?
Children have numerous rights in Australia with the aim being to ensure the child’s wellbeing – their physical, emotional and psychological wellbeing – is protected.
When matters impact a child, according to the Australian family law system, a decision should be made with the best interests of the child in mind. Two key primary considerations and a number of other considerations help to guide parents and lawmakers when making decisions that are in the best interests of the child.
The primary considerations are:
- The benefit of the child of having a worthwhile and meaningful relationship with both of their parents.
- The need to protect a child from the risk that they may suffer any harm, whether physical or psychological. This includes the need to protect them from being subjected to or exposed to any form of abuse, neglect or family violence.
While the family law system encourages the relationship and presence of both parents in a child’s life, of these two primary considerations, the second one is given more weight.
Other considerations of the best interests of the child include:
- The child’s views (depending on age, maturity and understanding of the situation)
- How the child relates to their parents and other important persons.
- The willingness and ability of the parents to facilitate their child’s relationship with the other parent.
- The effect of any change in circumstances of the child.
- Each parent’s ability to look after the child’s needs.
- Each parent’s attitude to the child and their parental responsibilities.
- Any domestic violence incidences or orders involving either the child or a family member.
What exactly is parental responsibility?
Parental responsibilities are the powers, responsibilities, and authority that a parent has in relation to the child by law. Protecting the child’s wellbeing is the main goal of parental responsibility and involves parents having a say in the major decisions that will have a long-term effect on the child and ultimately coming to a decision together.
Major long-term issues are those that may have a long-term or lasting impact on your child’s care, welfare and development. It may include decisions about religion, their name, living arrangements, education, and their health.
Unless there is an Order stating otherwise, both parents have parental responsibility and can have a say on these major decisions, even if the parents are separated. This is known as equal shared parental responsibility.
This means that even though you and your child’s other parent may no longer be in a relationship, you cannot make a major long-term decision for your child without the agreement of the other parent. If you’re unable to make a decision, you may be able to apply to Court to have the Court decide for you.
While there is the presumption of equal shared parental responsibility, sometimes, it’s not in best interests of the child for both parents to have parental responsibility and one parent may be designated sole parental responsibility. This may occur where abuse, negligence and/or family violence exists.
Sole parental responsibility is sometimes referred to as sole custody, however, the correct legal term to use is sole parental responsibility and this means that the duties, responsibilities and powers of making long term decisions for the child rests with one parent.
Who can have parental responsibility?
As families can be created in a number of different ways, you may be wondering who can have parental responsibility. The Family Law Act notes that birth parents, adoptive parents, and those who have become parents through surrogacy and artificial conception all have parental responsibility.
It also doesn’t matter whether the parents of the child were married, in a de facto relationship or even in a relationship at all for parental responsibility to apply.
Other important persons in the child’s life, such as family members who help to raise a child may be able to be designated parental responsibility, however they will not automatically have it just because they help to raise a child – it will need be to be granted by the Court and could be designated to Grandparents for example.
Another important fact to note is that while stepparents may take on the role and responsibilities of raising their partner’s child, they are not automatically granted parental responsibility, even when they marry the child’s parent. A stepparent can make an application for parental responsibility.
Equal shared parental responsibility vs sole parental responsibility – which is better?
While the family law system in Australia has the presumption of equal shared parental responsibility, as we mentioned earlier, it may not always be the right option in your situation.
The child’s welfare is of great importance and should be the key factor in deciding whether it’s appropriate for both parents or only one parent to have parental responsibility for a child.
If you’re concerned about the role of your child’s other parent in your child’s life and are considering applying for sole parental responsibility, it is highly recommended that you seek legal advice. Designating parental responsibility to one parent can have significant long-term consequences for all parties and many factors need to be considered. You can talk to our experienced family lawyers to learn more about parental responsibility.
Equal Parental Responsibility and Equal Time
It’s common for parents to assume that equal shared parental responsibility for a child also means that each parent is entitled to equal time with their child. This is not the case.
The amount of time each parent spends with their child can be decided by the parents, through private agreements, negotiation or mediation, or it may be decided by the Court and is heavily dependent on the unique factors of your situation.
Factors such as the work demands of each parent, where each parent lives, where the child goes to school, and the ability of each parent to provide for a child will all have an impact on this. These are only some of the practical factors that could impact this. The most important factor in working how much time the child will spend with each parent is whether its in the child’s best interest to spend an equal amount of time with each parent.
Parenting arrangements, plans and orders can also be discussed with experienced family lawyers.
Resolving parenting matters in Australia
If you’re experiencing disputes related to parenting matters and you need help, here at Dorter Family Lawyers and Mediators we can help you. Our family law team is highly experienced in a vast range of family law matters, including parenting and children’s matters. Discuss your situation with our team today. You can get in touch with us by calling 02 5566 2998 or booking a consultation online here.