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Order for Sole Parental Responsibility in preference to Equal Shared Parental Responsibility

Communication is the key factor in ensuring the workability of parenting orders especially in regards to sharing parental responsibility. Most parents consider that when making long terms decisions about children when separated that they should both be involved or included. It is a presumption (a rebutable one) under Section 61 of the Family Law Act “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”: s 61DA(1). This presumption relates solely to the allocation of parental responsibility. It is not a presumption about the amount of time a child is to spend with each parent.

The court often when high conflict is in play between the parents has to put aside this presumption in favor of what will work best for the child.

In Penski & Kocher [2013] FamCA 255 (17 April 2013) the father sought a division of responsibilities and the wife wanted sole parental responsibility for all major long-term issues. The parties had no communication with each other and had many arguments about the child. Cronin J concluded at paras 71-73:

“Children have the rights that are set out in s 60B to which I have referred above. Those are the responsibilities that parents have for their children. Here, there is little prospect that those responsibilities could be fulfilled together in any joint sense. Similarly, even if I gave the parties an opportunity to comment on each other’s proposed decisions, conflict would be likely to follow. In circumstances where one parent had the responsibility for one thing and the other for another major long-term responsibility, where they were parenting in their own way oblivious to the views of the other, the child must be at risk. If major long term health issues includes psychological assistance, a school welfare counsellor might be conflicted if the wife had the health responsibility and the husband the education responsibility. Similarly, if the wife is responsible for the major daily activities of the child, having the husband make long-term decisions in relation to education, could be problematic if he chose a school that was difficult for the wife to attend or at which she did not have a reasonable relationship with other parents. Conversely, if she was responsible for the education but the husband health, he could create problems that would ultimately place the wife in a position where if she disagreed with the decision, she would still have to produce the child for whatever medical examination or treatment the husband dictated.

As such, until such time as the parents can have a modicum of respect for each other and make decisions in a consultative way, the person who has the major responsibility for the daily activities including giving the child a home base, should be the person who has the responsibilities for making those long term decisions. In this case, that is clearly the wife.

The husband also sought a variety of other orders and the underlying theme was flexibility. Mr B [the family report writer] baulked at such a concept of flexibility and so should this Court.”

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