Parental Responsibility and Custody are two separate considerations in the Family Law Context.
Parental Responsibility is defined as making decisions for children that affect them on a long term basis. Such decisions involve the following:
- Living Arrangements;
- Health matters;
- Cultural matters; and
- The child/ren’s name.
In Australia there is a presumption that parents have equal shared parental responsibility. This presumption applies without the need for Court Orders. If a decision needs to be made with respect to the items listed above, the parents must consult with each other and make a genuine effort to make a joint decision. In the event the parties cannot make a joint decision, they can engage in mediation and if the matter cannot be resolved by consent, file a Court Application, if necessary.
In some circumstances a parent can apply to the Court for sole parental responsibility. This may be applied in cases involving significant domestic and family violence, abuse of a child or where there is a high level of conflict between the parents. Each case has to be considered on an individual basis taking into account whether it is in the best interests of the child for the presumption to rebutted.
Another option available to the parties and the Court is to separate particular decision making and nominate a particular parent to make sole decisions with regards to a type of decision. For example, one parent may be permitted to make sole decisions with regards to the child’s schooling.
It is important to remember that if you are seeking to change the child’s name a sole parental responsibility order will not be enough for the Registry of Births, Deaths and Marriages to do so, you should seek specific Orders for this. Alternatively, an Application to the Magistrates Court can be made should both parents not agree to the change.
In Australia the Family Courts do not use the terminology ‘custody’ but rather use the phrases ‘spend time’ or ‘live with.’ Having equal shared parental responsibility does not mean that the ‘custody’ arrangements will also be equal.
If parents disagree about care arrangements they should seek legal advice, engage in mediation and then as a last resort they can file a Court Application.
There are various ways to resolve the ‘custody’ arrangements and we explore these in our Article Parenting Arrangements – DBL Solicitors
Before entering into discussions or negotiations with the other parent it is beneficial to obtain legal advice about your particular family dynamics. For a confidential discussion contact the DBL Family Law Team today.