PARENTAL RESPONSIBILITY

The term 'parental responsibility' refers to the key responsibilities that parents have in relation to their children's long term needs, such as matters concerning their health, education and religion. There is a presumption that these responsibilities shall be equally shared between parents. However, this does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence.

A parenting order is a set of orders made by a court about parenting arrangements for a child. It can be based on an agreement reached by the two parties (consent order). It can decide things such as:

If a parenting order is made, every person who is subject to the order must comply with it. The court may issue a warrant for the arrest of a person who contravene the order, and have them brought before the court to be dealt with. If both parties agree to change a parenting order, you can enter into a parenting plan or apply for consent orders to change it.

The 'status quo' remains an important consideration in the interim determination by the Court as to what living arrangements would be in the best interests of the child pending the final hearing or trial. Maintaining the status quo simply means continuing with the caring arrangements the child is currently in, or allowing the child to continue living with the person with whom he or she has been residing.

It should not be assumed, however, that at the interim hearing the court will inevitably maintain a child caring arrangement that had been in place prior to that hearing. The court will focus on sharing parental responsibilities and will consider all matters relevant to the child's best interests in determining the child's living arrangements.

Because the court has to think about the child's future welfare in the parent's household, it may take into account an applicant's criminal actions, sexual behaviour, drunkenness, mental stability, moral beliefs or any other characteristic which could affect the way a child would be treated. The court considers who the child is living with at the time of the application, the proposed accommodation for the child and any other consideration that will be relevant to the happiness and wellbeing of the child.

The expressed wishes of a child are taken into account, however the general age and maturity of the child will be a factor in considering how much weight the court gives to the child's wishes. There is no specific age at which a child may decide with which parent he or she wishes to live. The child's wishes are one of the broad range of considerations that the Court takes into account in determining the child's best interests. Generally those wishes are made known to the court by means of the child's lawyer or the family report referred to below.

A child may have independent legal representation. It can be obtained by a court order made on the application of any person or organisation concerned with the welfare of children or on the motion of the court itself. The child may also apply.

The court may order at its own suggestion, or by application of either or both of the parties, that a report be prepared by a Family Consultant. This report will consist of that person’s assessment of the matters that the Court needs to consider in relation to the child’s welfare.

A child cannot be taken overseas without the written consent of any person who has the benefit of a parenting order. It is also necessary to get the consent of anyone who is in the process of applying for a parenting order. If there is a possibility of, or threat of, a child being removed from Australia, the court may order that the passport of the child and of any other person concerned be delivered to the court.

When the parent having a residence order for a child dies, the other parent is entitled to residence only if the court so orders upon application by that parent. The surviving parent can apply to the court, as can any other person who has an interest in the welfare of the child.

Where a child's location is unknown, the court may also order that information about the child's location be provided by any Commonwealth department (for example, Centrelink) or by any other person.

No one should interfere with an order made concerning the parental responsibility for a child without seeking legal advice regarding the consequences for doing so.

The court has the power to order a "parentage testing procedure". Failure to take the test has no penalty but the court can draw inferences. The report on the test is admissible as evidence.

For more information on this subject refer to The Law Handbook chapter 5.2