The parent of a child has parental responsibility for that child regardless of whether the parents have separated or remain in a relationship.
The Law in this area defines parental responsibility as:
“All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Parental responsibility can be divided into day to day issues, such as what the child will eat, what the child will wear and where the child might travel throughout the day. The law in that area does not require that parents need to consult each other about such day to day issues.
Parental responsibility for the purposes of Family Law is relevant to the long-term decisions such as what school children will attend or other educational issues, children’s religion or culture, issues relating to children’s health, where children will live and change of name. These issues require consultation between the parents.
There are two types of parental responsibility being equal shared parental responsibility and sole parental responsibility.
As stated above, both parents will hold parental responsibility until Court Orders state otherwise. What a Court Order means is that a Judge will either make an Order about what type of parental responsibility you may hold or, you and the other parent can reach an agreement as to parental responsibility.
What is Equal Shared Parental Responsibility?
This is when both parents must consult each other and make a genuine effort to reach a decision about such issues.
Initially it is considered that it is in the best interest of your child that both parents make these joint decisions. Where there has been child abuse and family violence, this so called presumption may not apply. Often equal shared parental responsibility is not appropriate where parents are unable to make any decisions on a joint basis about things such as education medical needs.
It should also be noted that more than two people can hold equal shared parental responsibility such as where one parent and the grandparents will hold parental responsibility.
When does Sole Parental Responsibility Apply?
Sole parental responsibility, as the name suggests, means that one parent has complete responsibility for making long term decisions for the children. This does not mean the other parent will have no input as you are able to specify that the parent that holds parental responsibility must put the other parent on notice or give them the opportunity to respond to any proposal on long-term decisions regarding the child.
As the best interests of the children will always be the first consideration, the Court, where appropriate, may Order that one parent holds the ability to make all the decisions. Often this will apply in circumstances where family violence is an issue.
How to Apply for Parental Responsibility?
As noted above, until an Order of the Court is made you both hold parental responsibility. In order to seek Orders around this, you either apply to the Court and go down the path of having a Judge decide your matter or you could reach an agreement and file what is called an Application for Consent Orders with the Court. It should also be known that prior to applying to the Court for determination, the law requires you to participate in a mandatory Mediation prior to such time, unless there are extenuating circumstances such as family violence or child abuse in which case you are not required to attend Mediation.
If you cannot reach an agreement and a Judge must decide the issue for you, you need to be aware that to get to a Final Hearing for that issue to be determined, can take more than 2 years. It can be a long and expensive process and very stressful for all involved.
If you reach a joint decision and file the Application for Consent Orders, you do not have to participate in Mediation but you must advise the Court as to whether there is any violence in the relationship.
Obviously parental responsibility is a very important issue for parents. It could assist parents greatly to obtain legal advice around this when separated so that you may gain knowledge as to the best way to proceed.
If we can be of any help, please do not hesitate to call or contact us.