the family law act presumes that parents who separated still retain full parental responsibility over their child.
The FLA also presumes that equal and shared parental responsibility between the parents is in the best interest of the child. Thus, the family court will proceed to issue parental orders taking into consideration that equal sharing of parental responsibility is best for the development of the child.
Shared parental responsibility means that both parents retain full parental rights and responsibilities and they will confer with each other so that major decisions affecting the welfare of the child will be jointly determined. Day-to-day decisions for the care, maintenance and welfare of the child will be exercised by the parent with whom the child lives but long-term decisions such as a change of name or a change of living arrangements must be jointly reached by the parents.
The child shall spend equal time or substantial and significant time with each parent. Shared parental responsibility also means that both parents will conduct themselves in a manner that will encourage and promote a close and meaningful relationship between the child and the other parent because it is in the best interest of the child to maintain good nurturing relationships with both parents.
Section 61DA of the Family Law Act 1975 requires the court to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child when making a parenting order. If this presumption applies, the court must go on to consider whether it is in the child's best interests to spend equal time with a parent who has equal shared parental responsibility for that child, or substantial and significant time:
s 65DAA(1) and (2) The presumption does not apply where there are reasonable grounds to believe that a parent or person living with the child has engaged in child abuse or family violence.
The Court's approach has been to consider the presumption after examining the s 60CC best interest factors. The presumption may be rebutted by evidence that satisfies the court that it would not be in the child's best interests to apply the presumption: s 61DA(4).
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.