Parental Responsibility: A recent push for change

Parental Responsibility is a fundamental concept in family law parenting matters. What is it exactly?

Parental responsibility is all the powers, responsibilities and duties parents have in relation to their children. Parental Responsibility includes long term decisions about a child (such as their education, health and religion) as well as the day to day decisions about a child.

Family law orders can provide for parental responsibility to be “equal”, that is shared by both parents or “sole”, that is only to be exercised by one parent. In some cases, Courts may Order that parents have equal parental responsibility about some matters relating to a child and sole parental responsibility about other matters (such as medical issues, education, religious matters, etc.). Such Orders may require that a parent inform the other parent of their sole decision but not actually require the other parent’s input in the decision itself.

The Family Law Act provides a presumption that when an Order will be made for parties to have equal shared parental responsibility for children unless there is an exception. One exception to the presumption is in matters where a Court is satisfied that a parent has engaged in family violence or the abuse of a child.

Equal shared parental responsibility does not mean that a parent spends equal time with their children. Parental responsibility and orders setting out with whom a child lives and with whom they spend time are separate matters, however the level of parental responsibility is relevant when making Orders about children’s living arrangements and the time they spend with each parent.

In matters where the presumption of equal shared responsibility is not rebutted, then when Orders are being made about when a child lives with or spends time their children, in accordance with 65DAA of the Family Law Act, the Court must firstly consider whether an equal time arrangement is in the children’s best interests and if not whether Orders providing substantial and significant time are appropriate. Substantial and significant time usually includes time during the school week and on weekends as well as extensive school holiday time.

The topic of parental responsibility has recently been in the press. Recent development about parental responsibility has arisen in Queensland following the very tragic murders of Hannah Clarke and her children Aaliyah, Laianah and Trey by her former husband and the children’s father.

Queensland Federal Labor MP, Graham Perrett is advocating for a change through Parliament to the default position of equal shared parental responsibility. He introduced a Bill on 15 June 2020 seeking amendments to the Family Law Act. Mr Perrett suggests that the Family Law Act’s approach to parental responsibility is too difficult to understand. He submitted in parliament that this leads to a “widely held misconception that equal shared parental responsibility means equal shared care — that is that parents will spend equal time with their children” which he suggests “sets up a false expectation that parents have some right to guarantee equal time with their children”. His main concern is that this is misunderstanding can lead weaker parties, particularly those who have been subjected to family violence, to agree to “unsafe parenting arrangements, in the belief that they have no choice."

Mr Perrett’s push for change to how parental responsibility is set out in the Family Law Act is not an isolated endeavour. It has been flagged many times in recent years including in the 2019 Australian Law Reform Commission Report which unequivocally recommended that section 65DAA of the Family Law Act be repealed. The formal push for change through parliament is however only in its infancy — there are a lot of further parliamentary processes that need to be adhered to however it is an interesting development and one that we as family lawyers will continue to keep a close eye on.

If you require any further information about parenting matters, you should not hesitate to contact our very experienced Family Lawyers or make an appointment online.