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  • Writer's pictureKatrina Favre

The Difference Between Parental Responsibility And Custody In Parenting Orders

Parental responsibility is not the same as “live with” or “spend time with” arrangements between a parent and child. While both concepts are important and necessary for parenting orders, they have two separate functions. So, what is the difference between parental responsibility and custody?

What is “Parental Responsibility”?

Section 61B of the Family Law Act 1975 defines parental responsibility in relation to a child to mean “all the duties, powers, responsibilities and authority which, by law, parents have, in relation to children”. As a parent to a child, you have the right to make decisions about matters relating to their care, welfare and development. This includes medical decisions, where your children should attend school, what religion they should follow, and where they can live.

As a parent listed on the birth certificate of your child, you automatically have joint parental responsibility with the other parent listed on the birth certificate. There are only two ways to change this: an adoption order or a Family Court Order.

In family law, there is a presumption that equal shared responsibility in parenting orders is in the best interests of the children. Section 61DA(1) of the Family Law Act 1975 makes clear that “When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents have equal shared parental responsibility for the child”. This presumption can be rebutted if there is evidence of family violence or the Court is otherwise satisfied it is not in the best interests of the child for the parents to have equal shared parental responsibility. For example, there may be difficulties with both parents communicating with one another, therefore making it impossible for any decisions to be made. If the presumption is rebutted, the Court might give one parent sole parental responsibility, or make specific orders for joint and several parental responsibility.

What are “Live With” and “Spend Time With” arrangements?

Prior to the 2006 legislative amendments to the Family Law Act 1975, Courts and persons generally referred to having “custody” of a child. The 2006 amendments shifted the language of "custody orders" used in parenting proceedings to “live with” and “spend time with” orders.

Parenting orders differ from parental responsibility orders because they regulate the actual parenting arrangements, that is, the time you spend with your children. These orders provide for who the children are to live with and how they are to spend time with the other parent. Such orders are helpful to set a timetable or schedule for you and your ex-partner to spend time with your children and ensure you do not miss out on important occasions.

What is a parenting order?

A "parenting order" may deal with a variety of matters specified under section 64B of the Family Law Act 1975, including:

                     (a)  the person or persons with whom a child is to live;

                     (b)  the time a child is to spend with another person or other persons;

                     (c)  the allocation of parental responsibility for a child;

                     (d)  if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

                     (e)  the communication a child is to have with another person or other persons;

                      (f)  maintenance of a child;

                     (g)  the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

                              (i)  a child to whom the order relates; or

                             (ii)  the parties to the proceedings in which the order is made;

                     (h)  the process to be used for resolving disputes about the terms or operation of the order;

                      (i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

At KF Lawyers Australia, we have extensive experience in a wide range of parenting disputes, including disputes for blended families, parents held in prison, parents who have been alienated from their children, and victims of domestic violence. We also have experience with Hague Convention matters and we can also assist you in mediations. Contact us now for a free initial consultation.

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