Before you can become a plumber or a carpenter you have to undertake years of technical training, work under close and exacting supervision, sit for exams, and earn your ticket. No one gets to be a doctor, lawyer or accountant unless they first qualify for university, then study day and night for years, sit regular and sometimes arduous examinations, and pass with flying colours. But to become a parent, all you have to do is find a partner, cross your fingers, and hope for the best.
Then comes the hard bit – ‘bringing up Baby’.
In a legal context, that calls into play a whole range of rights and obligations collectively and euphemistically termed ‘parental responsibility’ – the myriad of duties, powers, responsibilities and authorities which, by law, parents have in relation to their children, including long-term decisions that affect a child’s health, education, religion, name, culture and living arrangements. There is no course to undertake or certification to secure, to qualify us for that task. We’re all just left to learn on the job. It’s a very important job indeed, and a tough one to do all on your own.
Section 61DA(1) of the Family Law Act sets out a legal presumption that it is in the best interests of children for their parents to have equal shared parental responsibility for them, regardless of whether their parents live together or apart. That doesn’t necessarily mean shared custody or access, it just means that ordinarily it will be in every child’s best interests that their parents equally share those long-term duties, powers and responsibilities that go to make up parental responsibility.
However, the presumption under Section 61DA(1) can be rebutted in appropriate circumstances, for example where family violence or child abuse is an issue, or if it otherwise can be shown it would not be in the child’s best interests for their parents to share parental responsibility for them. The Court will consider an Order for sole parental responsibility where, for example, parents cannot communicate effectively, and they have irreconcilably conflicting views on long-term issues.
I recently was involved in a three-day trial in the Federal Circuit Court where the central issue concerned whether my client, the mother of two young children, should be entitled to sole parental responsibility for the children. The evidence before the Court established that my client had experienced significant difficulties trying to co-parent with the children’s father in respect of their care, welfare and development, ever since the children were born. The father was shown to have limited understanding of the attachment and development needs of the children, and over a lengthy period had failed to work cooperatively with their mother to further their best interests. The couple came from quite divergent ethnic origins, and social and cultural differences between them informed their respective expectations regarding the way their children should be parented.
By way of example, for the past five years the father had repeatedly failed to abide by Court Orders to support the children in their school and in extra-curricular activities, cancelled and changed his allocated time with the children regularly and often on short notice, ignored the mother’s appeals concerning the children’s medical and education needs, and paid very little to support the children financially. As a result, a highly acrimonious relationship had developed between the parties with complaints and allegations flying back and forth, ultimately preventing them from effectively communicating with each other. At the trial we contended that the couple’s inability to resolve their differences and co-parent in the best interests of their children was detrimentally affecting the well-being of the children. In responding to that argument, the father effectively confirmed it was so, conceding in cross-examination that he had no intention of working cooperatively with my client moving forward, and that he would never be able to make joint decisions with her in the children’s best interests. Ultimately, an order was made that my client have sole parental responsibility for the long-term decisions concerning the children.
Of course that doesn’t mean the father will be shut out of their lives, or will have no relationship with his children. But it does mean the big calls – the long-term decisions affecting issues like health, education, religion, name, culture, and living arrangements – will ultimately lie in the hands of their mother. It’s a tough job, but that’s what parenting is all about.
Gisele Reid, Family Lawyer and Migration Agent