Parental Responsibility Part VII, Div 2

What is parental responsibility? Defined by Section 61B:- In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.parentalresponsibilitychildparentschildren

Who has parental responsibility? Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. Regardless of whether married single etc This does not however make it a presumption (see S61DA)

If there is an order for parental responsibility pursuant to Section 61D, what does this mean? (1) 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.parenting orderparentalresponsibilitychild (2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):parenting orderchildparental responsibilitychild (a) expressly provided for in the order; or (b) necessary to give effect to the order.

FAMILY LAW ACT SECT 61DA Presumption of equal shared parental responsibility when making parenting orders (interim or final) Presumption does not apply in circumstances of:- Abuse Family violence Section 61DA (4) says the presumption is rebuttable by evidence that satisfied the Court that it is not in the child’s best interests * Note – In the case of a parent who previously had parental responsibility, where the child is adopted, the parental responsibility ends unless by a prescribed adopting parent and leave was not granted under s90G for adoption proceedings to be commenced

Very Goode Court applies presumption when making a parenting order When making such an order “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”: s 61DA(1). This presumption relates solely to the allocation of parental responsibility. It is not a presumption about the amount of time a child is to spend with each parent (the section’s own notation). Presumption applies to interim and fi nal orders This was confi rmed by the Full Court in Goode [2006] FamCA 1346 at paras 55–6 and 70.

‘Major long term issues’ are defined in s. 4 of the FL Act as: In relation to the child, means issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:- (a) the child’s education (both current and future); and (b) the child’s religious and cultural upbringing; and (c) the child’s health; and (d) the child’s name; and (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves a parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

Section 65DAE – No need to consult on issues that are not major long term issues What the child eats What the child wears

Pavli n Beffa (2013) 48 FAM LR 677 The parties wanted to enter into consent orders (with ICL support) in which the parents were to have ESPR on the condition that M would consult with the F in relation to matters relating to parental responsibility and failing agreement, the M was to make the final decision Watts J wouldn’t make the orders and instead made an amended consent order WHY?

Because the Judge said that there was nothing equal about the mother having the final say over the father This led to a discussion about what is the appropriate wording to use… If some major long term issues are made jointly then those specific issues are “shared parental responsibilities” - in other words, one parent can’t solely make the decision (s65DAC(2) In circumstances where the M had the final say, she can technically “solely” make the decision and therefore shared PR was not appropriate either Equal shared parental responsibility is not defined in the act because it doesn’t require further definition, like pregnant… … And unique

Equal shared parental responsibility --- shared parental responsibility --- who cares? It matters because if you invoke ESPR, you trigger the requirement of the Court to consider equal time and if not equal time, substantial and significant time Imagine if the parties had ESPR only with respect to the child’s surname, and you triggered the above requirement!

So what are the final rules? From the inclusive to the exclusive:- ESPR – all decisions about all long term issues need to be made jointly and s65DAA requirements are attracted One party has parental responsibility for some major long term issues and decisions about those issues need not be made jointly but in relation to other major long term issues parental responsibility is shared and decisions need to be made jointly No shared parental responsibility ie: neither is required to make decisions jointly One person has parental responsibility for all major long term issues and is not required to make decisions jointly (sometimes referred to as “sole parental responsibility”)

Modlin and Anstead (2013) FamCA 955 Involved an order for no parental responsibility Father was violent and Court concluded no time for father due to the effect on the mother’s mental health Presumption for ESPR didn’t apply because of the violence The mother and step father to have parental responsibility – agreed. Father wanted to retain PR. The mother and ICL sought that the mother and step father have “sole PR” – presumably to spell out that the father was to be excluded. Would they have to act jointly? The Court thought that ESPR was more appropriate and for the avoidance of doubt specified that the father was to have no parental responsibility.

Difference between parental responsibility and equal shared parental responsibility 1. The definition expressed in B v B: Family Law Reform Act 1995 (1997) FLC ¶ is still accurate in describing the concomitance of parental responsibility where no order has been made by the Court. However, there is a difference between parental responsibility which exists as a result of s 61C and an order for equal shared parental responsibility, which has the effect set out in s 65DAC. Once the Court has made an order allocating parental responsibility, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides. Band B: Family Law Reform Act 1995 (1997) FLC 92 – 755