BARRY.NILSSON. Lawyers

Published October 2010

In a recent decision of Lansa & Clovelly [2010] FamCA 80, Murphy J discussed at some detail the interplay between parental responsibility conferred on a parent by virtue of section 61C of the Family Law Act 1975 and an order that confers parental responsibility. In hopefully as concisely accurate as possible, his Honour found (amongst other things) that:-

• That section 61C conferred parental responsibility on a parent, subject only to a court order to the contrary;
• A parenting order which confers parental responsibility only derogates from the parental responsibility conferred by the Act to the extent to which the order relates;
• When making a parenting order, there is a presumption that parental responsibility be shared equally; although section 61DA does not state that when applying the presumption, the court is obliged to make an order conferring parental responsibility.

To those that have practised in family law since these provisions commenced in 2006, these matters seems well settled, even trite. Nevertheless, a close examination of the legislation and his Honour’s findings raise some interesting questions. In no particular order, or exhaustively set out, are the following:-

1. An order for “equal shared parental responsibility;” that is, an order which gives effect to the presumption, necessarily derogates from the legislative conferral of parental responsibility in section 61C because in order to exercise that responsibility a parent must not prevent the other parent from exercising the same responsibility.
2. A parent does not have the right to absolve him/herself of parental responsibility unless and until there is an order to that effect, and only to the extent of the order. Given that responsibility is defined in section 61B as, amongst other things, duties prescribed by law, there seems to be a positive obligation on parents to assume that responsibility and undertake those duties. Does that mean a failure to do so is a breach of the Act actionable against that parent? Can the Family Court operate to sanction parents who do not fulfil their parental responsibilities? Division 13A of Part 7 of the Act is titled “Consequences of failure to comply with orders, and other obligations, that affect children” (emphasis added). Notwithstanding the “other obligations,” which might be the duties ascribed to parental responsibility conferred by section 61C, none of Division 13A refers to anything but a breach of an order made by the court. So, despite conferral, and despite an intent of the Act to bind parents to their responsibilities, there seems to be no capacity of a court to require or enforce a parent to undertake the duties with respect to parental responsibility, outside enforcing an order made with respect to parental responsibility
3. It has generally been accepted that there is an inexorable connection between section 61DA (applying the presumption) and section 65DAA (mandatory consideration of equal time or substantial and significant time). But is that so? A court may apply the presumption when making a parenting order, but there is no obligation to make an order for equal shared parental responsibility consequential upon the application of the presumption. Section 65DAA only “kicks in” when there is an order conferring equal shared parental responsibility. A court may apply the presumption and then decline to make any order with respect to parental responsibility. It may be, for instance, as is often the case, neither party disputes that each party should share parental responsibility equally. In that situation, the court may not make an order and therefore not be obliged to consider an equal time order (or substantial and significant time order) pursuant to section 65DAA.

In our view, the question of parental responsibility in each case will often require detailed analysis, even if both parents are content to share it equally. A very detailed analysis and a careful case plan is required to ask the court to make an order conferring parental responsibility, especially one which is not equally shared.

For further information on this topic, please contact our Family Law team.