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There is a core principle within Australian family law which basically means that whenever a couple gets divorced or they separate, the parental responsibility for any children they may have is shared equally. A family lawyer will explain to you that even if the child’s two parents are not on speaking terms, and one regards the other as an unfit parent, the Family Court will order joint parental responsibility in almost all cases.
We say almost all cases because although shared parental responsibility is usually the default position, there are some circumstances in which instead of shared, sole parental responsibility will be ordered, although it may only be temporarily. The reasons for this are very narrow and only apply in cases where one of the parents is deemed unfit to have the responsibility.
This will be where a parent is known to be violent or abusive towards their child, or the other parent. Another example is when one parent is absent and there is no expectation of being able to contact them, and even if possible, they have shown that they have no interest whatsoever in the welfare of their child.
Other than these types of examples, which thankfully are rare, the presumption will be that shared parental responsibility will exist. This places a legal obligation on each of the child’s parents that any decisions they make will be in the best interests of that child. In addition, they will be expected to discuss and agree upon any of the major decisions that will impact the child and their upbringing.
We say major decisions, so that means that everyday decisions surrounding matters such as when the child will go to bed, what hobbies and sports they will be involved in, or what clothes they wear each day, will mainly be for the child and/or the parent they live with to decide upon, and not the other parent.
However, responsibility for agreeing and making the decision on the following major matters will be held jointly:
- The child’s health including major procedures
- The child’s education, current and future
- The child’s cultural upbringing
- The child’s religious upbringing and education
- Any changes to the child’s name should their mother remarry
- Authorisation of travel documentation such as a passport
- Agreeing that the child can be taken overseas for a holiday
- Instigation of legal action on the child’s behalf
- Authorising the adoption of the child
Although shared parental responsibility means that each parent effectively has a 50% say in these matters, it does not necessarily follow that the child will spend a 50/50 share of the time with each parent. In most cases they will live with their residential parent, and for practical purposes such as them having to go to school from there each day, that is the parent they will spend the most time with.
However, as the courts are keen for children to have as much contact with both parents as possible, there will a stipulation in any order relating to the child that ample visitation time is provided for. Now it might be that the parents may actually agree to a 50/50 of the time if it is possible, but, this is not a stipulation of equally shared parental responsibility.
In addition, both parents are expected to provide for their children and have a duty to support them financially. This applies regardless of which parent the child lives with, and in addition to any child support arrangements which are in place.
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