In Australia, parenting responsibility is presumed to be equally shared by both parents.
The Family Law Act 1975 states that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Each parent has parental responsibility for his or her child until the age of 18.
Generally, this parental responsibility starts from the conception of the child and is lost only either by death or by a court order. This parental responsibility is not affected despite any changes in the nature of the relationship of the child’s parents. (Section 61C, Family Law Act 1975)
De facto relationship
It does not matter whether the parent of the child is married or not. The parental responsibility remains even if the child’s parents are living in a de facto relationship. Thus, the responsibility of the parents is not affected even if they are living together as husband and wife but without a valid marriage.
When the marriage is broken down, the question of who will get the parental responsibility might be an issue. It is best that the parents of the child adopt a parenting plan. In that way, they agree on parenting arrangements that are favourable to both of them.
Under the Family Law Act 1975, a parenting plan is an agreement in writing entered into by the parents of a child, signed by them, dated and deals with the person or persons with whom a child is to live;
- or the time a child is to spend with another person or other persons; or the allocation of parental responsibility for a child;
- or if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
- or the communication a child is to have with another person or other persons; or maintenance of a child; or the process to be used for resolving disputes about the terms or operation of the plan;
- or the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
- or any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
If you and your former spouse agree about the parenting arrangement, it is advisable to have it formalized by applying for a parenting order. A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child. (Section 61D (1), Family Law Act 1975).
A parenting order is a legally enforceable order in which a party may ask the court to compel the other party to comply with the parenting order.
Who may apply for a parenting order?
As already stated, both parents have equal rights as regard to their parental responsibility for their child. With that, the law allows either or both parents to apply for a parenting order. In addition to that, the child itself or the grandparent of the child or any other person concerned with the care, welfare and development of the child, may apply for a parenting order.
(Section 65C, Family Law Act 1975) However, it should be noted that what has been given if there is disagreement on who should get parental custody is only the right to apply for a parenting order. The court will still have to determine whether a parenting order should be issued and determine the circumstances regarding the parental responsibility and parenting order.
Best interest of the child
The court should be guided in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA (1), Family Law Act 1975)
Effect of adoption
The person's parental responsibility for the child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and consent of the court was not granted for the adoption proceedings to be commenced. (Section 61E (2), Family Law Act 1975)
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.