Making long term decisions for children as well as decisions about the day today care for children is what is referred to in the Family Law Act 1975 (Cth) as “parental responsibility”. There is a presumption under section 61DA(1) of the FLA that both parents have shared parental responsibility for children.
However, an order may be made by the family courts in appropriate cases that that presumption does not apply. If this happens, then the responsibility for long term decisions for children will lie with the parent (or other person) as the Court orders.
The presumption may be rebutted and will not apply where there are reasonable grounds to believe that a parent has engaged in family violence or by evidence that satisfies the Court that it would not be in the best interest of children for parents to have equal shared parental responsibility or equal right to make long terms decisions for children .
Recent Case Law
In Worth & Worth and Anor (2019) which was on appeal before the Full Court of the Family Court of Australia, the Full Court confirmed the decision of the trial judge that the presumption did not apply as a result of the finding of family violence in that case. However, the Full Court said that even if the presumption applied (ie., even if the FLA allowed on the facts that both parents had equal responsibility for long term decisions for children), it was still rebutted because the parents could not communicate with each other and were not able to agree on long term decisions for children.
It was therefore not in the children’s best interests that there be equal shared parental responsibility.