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Rebutting the Presumption of Equal Shared Parental Responsibility

Parental Responsibility 

The Family Law Act governs how decisions in family disputes over parenting and property matters will be made. The definition of Parental Responsibility can be found in section 61B of the Family Law Act 1975 (“the Act”):

“In this Part, parental responsibility, in relation to a child, means all the duties,

powers, responsibilities and authority which, by law, parents have in relation to

children.”

According to the Act, Parental responsibility ceases upon a child attaining the age of 18 as per section 61C (1).

Equal Shared Parental Responsibility 

Under the Act, both parents are presumed to have equal shared parental responsibility. Equal shared parental responsibility means both parents have an equal say on the major long-term issues impacting on the child and that they must make a genuine effort to engage with each other to reach a consensus when making major long-term decisions. Equal shared parental responsibility does not mean that the child spends equal time with each parent. 

The Act provides that the Court must then give consideration to:

a. whether the child spending equal time with each of the parents would be in the child’s best  interests; and 

b. whether the child spends equal time with each parent is practicable and reasonable.

The Court attaches a significant weight to the child’s best interest when considering the proposed parenting arrangements. To read more on the governing principles of a child’s best interest that the court is required to consider are, kindly refer to https://www.wnlegal.com.au/childs-best-interest/.

The case of Goode & Goode provides a multi-step decision-making pathway in the Court’s approach towards child related proceedings. It aids in the understanding of what parental responsibility is and the necessary considerations to rebut equal shared parental responsibility. These include: 

  • the important aspects of a child’s “interest”;
  • whether presumption of equal shared parental responsibility is applicable or is rebutted;
  • if the presumption of equal shared parental responsibility applies, then whether making an order that the child spend equal time with both parents is in the child’s best interests;
  • if equal time is found not to be in the child’s best interests, then whether the child should spend substantial and significant time with each parent; and
  • if neither equal time nor substantial and significant time is in the child’s best interest, then to decide what is supposed to be in the best interest of a child.

Equal Shared Parental Responsibility can be rebutted under the Act

Under the Act, the Court must consider whether equal time or substantial and significant time is in a child’s best interest. In other words, the Court assumes that equal shared parental responsibility is in the child’s best interests. 

If the presumption of equal shared parental responsibility is rebutted, the Court does not need to consider whether equal time or substantial and significant time is in the child’s best interest.  Instead, the Court must make whatever order it thinks is in the best interest of the child under consideration of the overall scheme of the matter. The Court will grant equal and shared parental responsibility unless it can be successfully argued that such presumption does not serve the child’s best interest. 

Some of the main issues considered by the Court to rebut the presumption of Equal Shared Parental Responsibility include: 

  1. Family Violence

The Act imposes a significant weight to family violence and child abuse provision.  Moreover, the court can also consider current and expired Domestic Violence Orders (DVOs) when determining the best interest of the child.

If the child is at risk of being exposed to Family Violence, or was in fact a victim of Family Violence, the presumption of equal shared parental responsibility may be rebutted. 

A non-exhaustive list of family violence would include the following:

  • assault;
  • sexual assault or other sexually abusive behaviour;
  • stalking;
  • intentional damage or destruction to property;
  • intentionally causing death or injury to an animal;
  • financial abuse;
  • substance abuse;
  • intentional isolation from friends, family or culture; and
  • deprivation of rights.

Neither parent should not be pressured into a parenting arrangement they do not believe does not adequately protect the child. 

If the court considers that there are reasonable grounds to believe that a parent has engaged in family violence or child abuse, then the presumption of equal shared parental responsibility is rebutted and may result in the other parent (the victim) receiving sole parental responsibility.

In the case Colson and Olds, the Court reasoned that unacceptable risk of family violence induced by the Father would rebut equal shared parental responsibility. As a result of the father’s conduct, there was significant pressure on the child’s relationship with the Mother. This affected the mother’s capacity in fostering stability in the home environment. Hence, the presumption of equal shared parental responsibility was not observed by the courts.

2. Sole Parental Responsibility and the Inability to Co-Parent

As described in the case of Pavli & Beffa :

“In many cases, the fact that the Order is not a “shared parental responsibility” Order but rather a “parental responsibility” Order is emphasised by adding the adjective “sole”. “Sole parental responsibility” is not an expression used in the Act. “Sole” is an antonym of “Shared”.

Sole parental responsibility can be granted for a specific issue or set of issues only, or it can be given entirely to one parent for all major long-term issues and other decisions.

When someone has sole parental responsibility, it means they do not need to consult with their ex-partner to reach an agreement about the child’s welfare and can make all decisions themselves.

Other factors such as inability of the parents to reasonably or adequately communicate with each other regarding matters of importance to the child such as health, education and religion, and, lack of trust between the parents may be adequate to satisfy the court that it is not in the best interests of the child for the parents to have equal shared parental responsibility.

An example of a case where sole parental responsibility was granted in the favour of the wife is Malcher & Malcher [2016] FamCA 1063.

The case study of Malcher & Malcher  

Mr and Ms Malcher were married with three children and eventually separated. Amongst the main issues affecting their judgement for parental responsibility, was the inability of the husband and wife to communicate in a rational, appropriate, respectful way. There was a constant breakdown in their communication, and when the husband did communicate it was with disrespect. The wife gave evidence of domestic violence perpetrated towards her by the husband throughout their relationship. This included the husband hitting the wife and throwing objects at the wife, sometimes in front of other people or the children.

Although the husband denied the allegations, the judge did not accept his denials and deemed the wife’s accusations as the truth. A disagreement regarding major long-term decisions for the children was the choice of school for the youngest child. 

This was due to, among other reasons, the failure of the parties to engage in appropriate communication and the husband’s ill treatment towards the wife. The children were primarily to live with the wife but spend time with the husband during the school term and school holidays.

Parental Responsibility in relocation matters

In the case of Bryce & Bonig, the Court had to make a decision on the mother’s relocation from Australia to the UK with the teenaged children of the relationship, to be with her new partner who was based in the UK. A history of family violence was evidential between the parties and it was alleged that children were endangered from exposure to the violence. Moreover, it was the case that the father would not be the parent that would encourage a strong relationship between the children and the Mother. 

The Court made the Order that the Mother is permitted to relocate and the father spend time with the children on school holidays with the Mother to contribute much of the cost. 

When relocation is permitted, equal shared parental responsibility can be a complicated issue. Hence, It is possible for the Court to make Orders for the parent that lives with the child have sole parental responsibility.

The rebuttal of the Presumption of Equal Shared Parental Responsibility does not necessarily lie in the argument of “family violence”. 

For further information about the previous decisions by the Court, or if you are looking for legal advice, feel free to contact us at WN Legal.

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