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Understanding parental responsibility: not just for parents

The phrase ‘equal shared parental responsibility’ is one that can be easily misunderstood to have the same meaning as ‘equal time with the children’. It is not unusual for parents or individuals with children that are subject to parenting matters before the Court to hear this phrase and sometimes be confused. As such, it is important for parties separating, and non-parent applicants before the Court, to understand the meaning of equal shared parental responsibility.

When making a parenting order, the Court applies a rebuttable presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility refers to all duties, powers, responsibilities and authority which parents have in relation to their children. These responsibilities and duties that parents have for their children include long term decisions such as determining the children’s religion and making decisions about the child’s health and education.

This then means, unless the Court orders otherwise, it is presumed every parent has this parental responsibility and, as such, parents that have separated or divorced ought to share major decision-making regarding the children. It should be understood that although parental responsibility places an obligation of responsibility on the parent, it does not confer an automatic and absolute right of a parent towards the child. Under Australian legislation, the best interests of the child are paramount to the Court’s decision-making.  It must be in the child’s best interests for an order to be made that both parents have equal shared parental responsibility.  If such an order is made, the Court must then determine whether an order that the child spend equal time with both parents is in the child’s best interests and should be made.  In a lot of cases, for a lot of reasons, this is not reasonably practicable and other time arrangements must be considered.

Orders for parental responsibility in relation to a child are not just for parents.  Such orders can be made in favour of a child’s grandparent(s) or any other person concerned with the child’s care, welfare and development.

If you have recently separated from your spouse or de facto partner, or have a child in your life whose long term care you are concerned about, contact us today for a reduced fixed fee initial consultation to discuss your options.  We have a great depth of experience in children’s matters, including acting for grandparents and non-parent applicants before the Court, and will provide you with no-nonsense, pragmatic advice.   Visit our website for information on our services and contact details.

First published 11 October 2016

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Financial help from your ex-spouse or partner after your separation

Here in south-east Queensland, actor Johnny Depp and his wife Amber Heard have been in the news for a number of reasons.  Firstly, for the couple’s reported failure to declare their two dogs Pistol and Boo to Australian immigration authorities when they arrived at the Gold Coast and, more recently, following the breakdown of their marriage.1 Johnny Depp is a successful Actor who earns a large income, and reportedly after filing for divorce, his wife Amber made a considerable claim for spousal maintenance.  This claim was later withdrawn, reportedly for a variety of reasons,2 however this high profile example draws attention to the important concept of spousal maintenance.

In Australia, spousal maintenance refers to financial support given by a party to a marriage or de facto relationship to the other party of that marriage or de facto relationship who is unable to adequately meet their reasonable financial needs.

During a marriage or a de facto relationship, one person may take time off work for a variety of reasons, such as for maternity leave, to become the primary carer for the children or to attend to the running of the household.  In the event of separation, this time off work often leads to that person being economically disadvantaged, due to the loss of income or promotions that would have been achieved if they were to have remained in the workforce.  The purpose of spousal maintenance is therefore to adjust for any disparity between the incomes or earning capacities of spouses based on their respective needs.

In determining spousal maintenance orders, the Court considers factors such as age, state of health, income, property and financial resources of both of the people in the relationship and primary care of children of the relationship. Spousal maintenance orders can be made by consent or after a contested hearing, and be made by the Court urgently if necessary. Spousal maintenance can be in the form of periodic or ongoing payments for a period of time.

If you have recently separated from your spouse or de facto partner or are thinking of separating and need more information about spousal maintenance, such as your entitlements or obligations, contact us today for a reduced fixed fee initial consultation to discuss your options.  We are experienced in spousal maintenance matters and can help you obtain the support you need to move into the next phase of your life.

By Daphne Chiwaya, Lawyer, Daykin Family Law – first published on 26 July 2016

 

1. http://www.abc.net.au/news/2016-05-26/johnny-depps-wife-amber-heard-files-for-divorce/7448382

2. http://abcnewsradioonline.com/entertainment-news/report-amber-heard-withdraws-spousal-support-request-in-dome.html