For married couples who have children, and who divorce whilst the children are still young, securing the services of a competent and reputable family lawyer for each party should be a priority. This is not just in respect of the legalities of divorce, and matters such as the property settlement, but more importantly with regard to their respective parental responsibilities.
Despite what we may have been led to believe via Hollywood movies and TV dramas, not every divorce becomes a courtroom drama with two parents fighting over who is the better one. In fact, the reality in Australia is a lot more mundane, and that should be regarded as a positive.
This is due to the Family Law Act of 1975 which has a core principle within it which makes the assumption that any divorcing or separating parents should share the parental responsibility for their children. That means that whilst the children will primarily live with one of their parents, each parent has a legal right and responsibility with regards to the major decisions that might be made in respect of the children.
With equal or shared responsibility, the parent with whom the children live is not the one that gets to make all major decisions about them, but instead should be conferring with the children’s other parent and ideally coming to decisions about their future that both parents agree on.
The areas of children’s lives in which joint parental responsibility most apply are:
- Schooling and education
- Health and medical procedures
- Cultural education
- Religious education
- Living arrangements and major changes to them
- Authorisation for travel documents g. Passport
- Changing the child’s name e.g. Mother remarries
Generally, most couples who separate or divorce can put the children’s welfare first, and are able to discuss and agree upon these important matters, despite not being together anymore.
The alternative to joint parental responsibility is sole parental responsibility where only one parent is responsible for making these major decisions, without the need to discuss or agree with the other parent. This scenario is rare as the Family Court’s preference is for equal shared parental responsibility whenever possible.
There are circumstances in which the Family Court will grant sole parental responsibility, however, there must be an extremely good reason for this to happen. Any decision the court makes will have at its core the paramount consideration of the best interests of the children, which may not necessarily be the decision that one or other of the parents is seeking.
The court’s starting position is the presumption that both parents have equal shared parental responsibility. Sole parental responsibility is usually only granted in high conflict situations and if there are reasonable grounds to believe that one of the parents has engaged in acts of child abuse or family violence towards the children.
Examples of circumstances in which the court will acquiesce are where domestic violence or physical abuse is clearly an issue, and where it would not be in the children’s’ interest for the inflicting parent to have equal shared parental responsibility.
In granting sole parental responsibility the court can allow one parent to be solely responsible for making the five major life decisions outlined above, but the court can also limit sole parental responsibility to certain decisions only. Each family law matter is different and any orders made by the court will be specific to each case.