Parental Responsibilities in Family Law

At the time a married couple or de facto couple with a child separate, the parent who is caring for the child at the time has the day-to-day decision-making responsibilities concerning the child.

Examples of this include what the child eats, when is their bedtime, what they watch on TV etc.

In many instances however, there is minimal or no discussion had between the parties concerning who will make long-term decisions concerning the child’s care, welfare and development post separation. This is where the legal concept of “parental responsibility” applies.

Parental responsibility is broadly defined as the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property. A person who has parental responsibility for a child has the right to make decisions about their care, upbringing and major long-term issues concerning issues such as the child’s health, education and religious observance. Both parents also have a duty to provide financially for the child.

As a starting point, the legislation states that both parents will have what is called “equal parental responsibility”— where both parents equally share the role in making decisions for the child pertaining to major long-term issues such as where a child will go to school, major health issues and religious observance. This legal concept does not necessarily equate to parents of the child automatically having “equal time” with the child nor does it stop the Court from making orders removing parental responsibility in certain circumstances.

Under Australian family law, it is important to note that although children’s rights are recognised, this is balanced with legislation allowing a Court to make orders to protect a child’s best interests. For example, a child have a right to enjoy a meaningful relationship with both of their parents however the Court must also uphold a child’s best interests such as protection from harm and abuse. In instances where a child is being harmed or abused by either or both parents, the child’s best interests prevail and the Court can make Orders that remove parental responsibility from one or both parents. The Court may also grant parental responsibility to a legal guardian.

At Umbrella Family Law we are experienced in all aspects of complex family law parenting matters. If you are thinking of separating and with a child of the marriage or de facto relationship and are unsure of your legal position, let us take the stress out of a difficult situation by guiding you though the legal process.

Contact us via phone (03) 9279 6800, or email theteam@umbrellafamilylaw.com.au.