If you have recently separated or contemplating separation and there are children involved, then you’ve likely come across the term parental responsibility. In this podcast, PD Law Senior Associate and Family Lawyer, Elizabeth Smith, discusses what you need to know about parental responsibility in Australian Family Law.
Transcript
Dan: Welcome to this edition of the PD Law podcast. If you’ve recently separated or contemplating separation and there are children involved, then it’s likely you’re going to come across the term parental responsibility. But what does it all mean? Well, in today’s podcast, we’re going to find out and to do so, I’m joined by PD Law Senior Associate, Elizabeth Smith. Elizabeth, at the outset, what is the definition of parental responsibility in Australian family law?
Elizabeth: So basically, parental responsibility is the duties, the powers, responsibilities, and the authority that parents have in relation to their children. So it’s not only the day to day, like the issues of raising your kids, but it’s also those long term things that parents think about when raising their children. So their upbringing, anything cultural, what school they go to, extracurricular activities, if they’re going to be raised religious, their name, major decisions about their health. It’s sort of the things that you think about when you have kids, basically.
Dan: So Elizabeth, what’s the impact of parental responsibility during a family law dispute?
Elizabeth: So parental responsibility is different to the time you spend with your children. But effectively, there’s a presumption that both parents will have equal shared parental responsibility. So that means that both parents need to consult with each other and make a genuine effort to come to a joint decision about those issues. A court can determine that, if one parent raises that there might be an issue with that occurring.
So, that presumption is what we call rebuttable, which means it can be changed effectively, and it means that if there are cases where a parent has or is alleged to have engaged in abuse of the child or in family violence, for example, then that presumption of joint parental responsibility can be amended by the court, and the court can look at whether that is in the best interests of the child. So, that’s really what it comes down to, the courts first and foremost, consideration is what is in the best interests of the kids, and how do we make sure that orders are put in place that protect the children if necessary.
Dan: Does the court get involved in the weeds of the rights and obligations that come with parental responsibility, or do they just leave that alone?
Elizabeth: Well, it’s only if it becomes an issue. So as I said, it’s a presumption, and it only really becomes an issue if one of the parents raises it as an issue, I suppose. As much as possible, courts don’t want to get involved. The courts recognise that the primary caregivers and the parents of children are generally best placed to make decisions about their kids.
They know their kids best and they know what works for their family dynamics. So wherever possible, courts don’t want to be involved, so that’s why the court system is set up to basically make sure that before you even walk in the door of a court, you’re doing everything possible to resolve any issues prior to coming before them. Court really ought to be, unless in very specific circumstances, the last port of call. You shouldn’t be going to a court unless you’ve exhausted all your other avenues first.
Dan: Does it follow in that case that when the court considers parental responsibility, that they want to see mum and dad spend perhaps fifty percent time with their child or children?
Elizabeth: Sometimes, but mostly you can still have joint parental responsibility, but not see or not have 50 % care of the child. It depends on what your situation is, but every family is so different and that may not work for the kids, basically.
So you might only see your children for school holidays and during long weekends and things like that. But you still are actively involved in their lives and have a say and make decisions about what happens and how those kids are raised. You can still have a joint parent and have a meaningful say in those things, but not have 50-50 care.
Dan: Now, we both know that sometimes these things aren’t a walk in the park and disagreements about parental responsibility flair up, what happens when they do?
Elizabeth: Well, then the court… It’s really important, I think, to think about what the court looks at and the court, quite frankly doesn’t really care about you or the other parent. The court is what we call child focused. The best interests of the child are paramount at all times, and everything else flows from there. So I think a really important thing to do is reframe your thinking and start thinking in terms of not thinking about what I’m entitled to or what mom or dad is entitled to and thinking about what is the child entitled to, and if you think of it like that, you can usually get a lot further in either negotiating or coming to an arrangement or coming to an agreement, and you might understand the process a bit better.
So really, at the end of the day, it’s about the children and what’s best for their wellbeing and welfare. Most of the time that is having a meaningful relationship with both of their parents, whatever that looks like. Unless there are either abuse issues or domestic family violence issues, or perhaps it’s such a high conflict area where the parents just cannot get along.
That’s a circumstance where the court might intervene. But even then, the courts been very clear that it’s not about punishing the parents for their behaviour. It’s about protecting the children from exposing them to that on an ongoing basis, if that makes sense. So really, if you think about the kids first, I think you’ll get a lot further with it.
Dan: Yeah, it’s a bit of a paradigm shift, isn’t it? Because you often hear parents talk about, look I’ve got a right to see my child, I’ve got a right to have an ongoing relationship with my child. Whereas it’s actually not about their rights, it’s about the child’s rights.
Elizabeth: That’s exactly right. So as soon as you reframe your thinking and start thinking about and remaining child focused, I think you get so much further, not only with working out what agreements can be reached, but also just working out what’s best for the kids, because you’re not thinking about what you want, you’re thinking about how your kids are going to go, and look in some circumstances where it’s quite high conflict or whatever, sometimes the court has to engage experts.
So sometimes if we are in a court setting and we’ve exhausted all our other options, the court might engage, get a family report and get an expert to assess the situation and make recommendations. Sometimes an independent children’s lawyer is appointed, and their whole role is to try and help the court know what those best interests of the children are, and again, remaining child focused. There is sort of things that can happen to make sure the court has those things in place, if that makes sense.
Dan: What about those circumstances where you have one parent who essentially is denying the other from seeing the child or children?
Elizabeth: Well, then that parent would have to give evidence and raise evidence that can form the basis for that. So obviously it does happen if there’s allegations of abuse, if there’s allegations of family violence, then that parent can raise, properly raise those issues and have the court consider them, and then the court will work its way through it. They’ll look at what that evidence is, the recency of it, all of those things that the courts, rules of evidence and that thing, the credibility of witnesses, all of that will come into play then. That’s when the court will make those determinations. But that all has to be properly raised in any application through a court.
Dan: Elizabeth, what about those circumstances where you have one parent who is actually denying the other parent from seeing the children or child?
Elizabeth: Well, the party should firstly try and do all they can through the appropriate channels. So that’s where they need to jump on it and speak to a lawyer and say, look, this is what’s happening and then try and open up some communication, try and maybe get some mediation going.
A mediation can be really helpful, you shouldn’t ever underestimate how useful having a third person in the room who’s completely out of it to try and get you guys to an agreement and try and mediate it and if all else fails, and if you’re still being denied time with your children, that’s when you have to go down the unfortunate path, I suppose, of having to try and litigate the matter. But look, there’s so many points along the way where you can try and avoid that and that comes down to being proactive and trying to get some advice as soon as possible and progressing it from there, I suppose.
Dan: Is the primary objective early in the dispute to try and get a parenting plan or what we call consent orders, something in writing sort of that binds the couple to the fact that, look, this is how you both will engage with the child or children?
Elizabeth: Yeah look, so many parents separate and have completely sensible agreements in place with their ex spouse about how their kids are going to be raised and managed and they never even have to bother with that sort of agreement. But certainly, it really can help parents if there is some sort of issues is nutting it all out and getting it all down on paper so that if in doubt, you can always go back to what you agreed in the first place and rely on that, and that can be a parenting plan, or it can go as be as formalised as a consent order.
It really just depends on what, it depends on you, it depends on your ex, it depends on the kids, and how much structure you need to manage the day to day and manage raising your kids, because it’s a lifelong thing. Once you’ve got children, your ex is going to be in your life while you’ve got those kids together. So it really is important to try and nut it all out as soon as possible and also be open to and alive to changes when kids go through so many different stages of their lives and things can happen.
And it’s about trying to… Communication is so key, and that’s why courts are so invested in things like mediation, but also in parenting programs and things where there is a bit of conflict, so that parents can go away and learn some skills to try and get through it all because it’s such a long road ahead. Especially if you’re separating when your kids are really little, you’ve really got so much to go. You’ve got young school and then you’ve got extracurriculars, and you’ve got teenage years and all of that comes with being a parent. So it’s important to try and knock that out where you can.
Dan: And getting legal advice, I suspect, early on in the process imperative?
Elizabeth: I think so, yeah. Especially if you’ve just got questions, it’s not always about, let’s knock this out and let’s sort it all out in writing and stuff. Sometimes parents want to know where they stand and just getting some advice can really, one, ease their mind. It’s such a stressful situation, it’s such a stressful time.
Your kids are generally one of the most important things in your life, so if you’re separating from their mother or father, it can be quite stressful and you can sometimes catastrophise. So getting some advice, even on a very basic level, can really ease your troubles, ease your concerns, and pave the way, hopefully for a nice, smooth transition for everyone, which is what we want at the end of the day.
Dan: Now, if people listening to this podcast have got questions Elizabeth, they can reach out to you and the team at PD Law?
Elizabeth: They sure can.
Dan: Excellent, thanks very much Elizabeth.
Elizabeth: Thank you.
Disclaimer: This podcast has been transcribed using AI. There may be errors that were lost in the translation.
