Parental responsibility -Presumption, Rebuttal - What is it?

The (CTH) Family Law Reform Act 1995 abolished the concepts of guardianship and custody which encompassed the responsibility for long term welfare of the children and the daily care respectively and introduced the concept of parental responsibility. Section 61B of the Family Law Act 1975 (Cth) defines parental responsibility ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’

Presumption of Equal Shared Parental Responsibility

Contrary to the position previously adopted by the courts that the father is the sole legal guardian of a child, the legislation makes it clear that the starting point while making a parenting order is to presume that both parents have equal shared parental responsibility of the children. Such a presumption is designed to facilitate the children’s right to have both their parents involved in their lives in a meaningful way.

Can the presumption be rebutted when making orders?

This presumption is displaced if there are reasonable grounds to believe that a parent has either:

• Abused his/her child or any other child, who was a member of the parent’s family

• Committed family violence

The presumption can also be rebutted if the court is satisfied that it would not be in the best interest of a child for the parents to have equal shared responsibility.

For example, in Ramsey v Hays (2017) 318 FLR 45, the Court held that the trail judge’s decision for the father to have sole parental responsibility for the child was adequate as there was evidence that an order of equal shared responsibility would lead to future conflict between the parents and the child’s exposure to such conflict would not be in her best interests. In making its decision, the trail judge highlighted the report from the family consultant which found that the mother’s bi-polar disorder exacerbated her unwillingness to adopt the views held by the father. Accordingly, the Court of appeal found that the trail judge’s decision provided ‘provided a circuit breaker for future conflict’.

In Hamilton & Logan [2015] FamCA 647, the child was diagnosed with autism spectrum disorder and required a high degree of structure and consistency in her routine.  The child had previously lived with the mother. However, the mother had been diagnosed for anxiety and depression, and had suicidal tendencies. It was found that the mother had turned on gas in her house while the child was in her care. The judge found that, while the mother loved the child, the mother’s unpredictable behaviour undermined her ability to care for the child. Accordingly, the presumption of shared responsibility was set aside and the father was given the sole parental responsibility while that the mother was allowed to have the child for four nights per fortnight.

In summary, the (CTH) Family Law Reform Act 1995 established a presumption of equal shared parental responsibility, which can be rebutted if there are reasonable grounds to believe that a parent has abused their child or committed family violence, or if it is not in the best interest of the child.