The Presumption of Equal Shared Parental Responsibility in Family Law

Under section 61DA of the Family Law Act 1975 (Cth), there is a presumption of equal shared parental responsibility when making parenting orders. This means when the Court is deciding a parenting matter, they must presume that it is in the best interests of the child for their parents to hold equal shared parental responsibilities. However, there are situations when the presumption will be rebutted. It is also important to remember the presumption of parental responsibility relates solely to the decision-making responsibilities of both parents and does not relate to the amount of time the child spends with each parent.

What is parental responsibility?

According to section 61B of the Family Law Act 1975 (Cth), parental responsibility is the general term used to describe all the duties, powers, responsibilities, and authorities that, by law, parents have concerning children under 18.

In a practical sense, parental responsibility allows a parent to make decisions on matters such as: -

• Where they want their children to go to school;
• Which GP they want their children to attend;
• What kind of diet the children are on; and
• What religion the children should follow.

In essence, parental responsibility provides the parent to make the day-to-day and long-term decisions for their children.

Why is there a presumption of equal shared parental responsibility?

In the Explanatory Memorandum (the document explaining the intentions behind each legislation) for Family Law Amendment (Shared Parental Responsibility) Bill 2005, the federal government stated it is essential to ensure that a child has a meaningful relationship with both parents and that both parents should participate in making decisions for the child. Hence, the presumption of equal shared parental responsibility was introduced.

The considerations mentioned within the Explanatory Memorandum above is consistent with the considerations outlined under section 60CC of the Family Law Act 1975 (Cth), which is the tool that the Court uses to work out what is in a child’s best interests. In particular, under section 60CC(3), the Court will consider the extent to which a parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child. Under section 60CC(4), the Court will also consider a parent’s attitude towards the child and the responsibilities of parenthood.

If you wish to learn more about how the Court uses section 60CC to work out a child’s best interests, you can do so by going to the link below and reading our article on this topic.

https://straitslawyers.com/en/law/family-law/the-courts-approach-to-the-best-interests-of-the-child-in-family-matters/

When can the presumption of equal shared parental responsibility be rebutted?

Under section 61DA of the Family Law Act 1975 (Cth), the legislation provides a few grounds as to when the presumption of equal shared parental responsibility does not apply, namely:

1. if there are reasonable grounds to believe that a parent has engaged in child abuse; or
2. if there are reasonable grounds to believe that a parent has engaged in family violence; or
3. if there is evidence satisfying the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.

It is noteworthy that the issue of parental responsibilities is usually not determined at an interim hearing but reserved for the final hearing. Unless the Court considers that it would not be appropriate for the presumption of equal shared parental responsibilities to be applied, the presumption will apply at an interim level.



Conclusion

The allocation of parental responsibility allows parents to make the day-to-day and long-term decisions for their children. Such responsibilities are a vital part of parenthood and are essential to a child’s welfare. In light of this, having the Court decide the correct allocation of parental responsibility is critical.

Given this, if you are going through a family law matter or dealing with orders relating to children and need help seeking parental responsibilities, Straits Lawyers are here to help you.

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Please note that this article does not constitute legal advice, and HandO Lawyers will not be legally responsible for any actions you take based on this article.