Parental responsibility: how was it dealt with and what should we expect in the future?

In our first look into the new legalisation, we have outlined the changes surrounding parental responsibility.

Under the current system there is a presumption that a child’s parents will have equal shared parental responsibility for the child. Equal shared parental responsibility requires the parents to consult about major long-term decisions for the child. The presumption applies in all cases where the court is making a parenting order unless the court has reasonable grounds to believe there was abuse, family violence, or the presumption has been rebutted because it is not in the child’s best interest.

Practically, this means the starting point for the court was that parents should have equal shared parental responsibility for their children. The onus fell on the parent arguing that the presumption should not apply to prove why.

The new act has removed the presumption completely.

This means that there is now no starting point for the court. When looking at how parental responsibility will be allocated, the court will need to undertake a more forensic consideration of the facts of each case to determine what is appropriate for the children in the particular case.

We may also find that there are more bespoke parental responsibility orders. The legislation now includes section 61D(3) which expressly states: -

A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.

In practice, it is not uncommon for parenting orders to specify that one party have sole parental responsibility for a child’s health or education. Including a specific reference to this in the act may enliven this practice further.

Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.