AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
Lander & Rogers Level 5 33 Alfred Street Sydney NSW 2000 Australia Tel: +61 02 8020 7700 Email: law@landers.com.au Web: www.landers.com.au
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The Constitution in Australia confers power on the Commonwealth (the “Federal Government”) to make laws with respect to parental responsibility, primarily through the Family Law Act 1975 (Cth) (the “Family Law Act”). Parental responsibility is a parent’s authority to make decisions in relation to major long-term issues affect - ing the care, welfare and development of a child. It is defined under Section 61B of the Family Law Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Major long term-issues are defined under Section 4 (1) of the Family Law Act as being issues relating to the “care, welfare and development of a child of a long term nature”, which can include the child’s edu - cation, religious and cultural upbringing, health and name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent. When a child is born, each birth parent ordinarily has joint parental responsibility for the care, welfare and development of the child until the child is 18 years of age. This responsibility is defined under Section 61C of the Family Law Act and continues irrespective of any changes in the nature of the relationships of the child’s parents (such as the child’s parents becoming separated or by either parent marrying or remarrying).
However, the Federal Circuit and Family Court of Aus - tralia (the “Court”) has the power to make a parenting order allocating parental responsibility for a child until the child is 18 years of age. A parenting order does not expressly diminish any aspect of parental responsibil - ity, except to the extent it is expressly provided for in the order or necessary to give effect to the order. On 6 May 2024, the law with respect to making par - enting orders in relation to a child in Australia changed significantly. Previously, the Family Law Act required the Court to apply a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility. Now, rather than a presump - tion of equal shared parental responsibility, the Court has discretion to decide what form of parental respon - sibility is in the child’s best interests. In the absence of any order to the contrary, both parents will retain shared parental responsibility for their child/children. Pursuant to Section 61DAA, if the Court makes a par - enting order that provides for joint decision-making about any issue, parents are required to consult each other in relation to each major long-term decision and make a genuine effort to come to a joint decision. Despite a parenting order allocating joint parental responsibility for a child, there is no requirement for a parent to consult on issues that are not major long- term issues whilst the child is in their care. If the Court does not consider it to be in the child’s best interests for the parents to have joint decision- making in relation to all major long-term issues, the Court may confer sole decision‑making in relation to parental responsibility on one parent to the exclusion
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