The separation of parents is an emotional and confusing time not just for parents but also for children. It is important that children feel cared for and safe during this time and it is the responsibility of both parents ensure that these needs are met.
Sometimes in situations of high conflict between parents, there can be a focus on the rights of the parent. However, the Family Law Act 1975 does not focus on parental rights but rather on the rights of the child. Parents have responsibilities under the Act and one of these responsibilities is the responsibility to ensure the child is safe and maintains a positive relationship with both parents.
Courts make decisions concerning parenting orders based on the best interests of the child.
Shared Parental Responsibility
The starting point in relation to parental responsibility is that both parents will have equal shared parental responsibility. This does not relate to custody or time spent with the child but rather means that both parents will have a say in making major decisions regarding the children. A major decision could include schooling or medical treatment but does not include day to day decisions, which can be made by the parent caring for the child at the time.
While there is a presumption that parents will be granted shared parental responsibility, in the case of high conflict parenting, the Court may find it in the best interests of the child to make an order for sole parental responsibility for one parent. This can occur in circumstances where there is abuse or family violence, or where there has been a breakdown in communication between the parents that makes decision making near impossible.
Sole Parental Responsibility
One such example of orders being made for sole parental responsibility is the case of Worth & Worth and Anor  FamCAFC 40 (8 March 2019). In this case sole responsibility was given to the mother. A factor in coming to this decision was the fact that the father had spent very little time with the children since the separation and due to the high level of conflict that existed between the parents. The Court found that since the parents could not communicate with each other they therefore would not be able to agree on major decisions and to require them to do so would only lead to confrontation and conflict. The Court decided that such a situation would not be in the best interests of the children.
Another case is Pruchnik & Pruchnik  FamCA 24 (23 January 2018), where orders were made for the father to have sole parental responsibility. This order was made as the Judge found that the dynamic in the mother’s household was not suitable for the children due to the fact that her Honour found that equal shared responsibility of both parents would only lead to further court proceedings as they could not communicate effectively to make decisions cooperatively.
Effect of High Conflict on Children
Relationships break down, but the parenting relationship is one that continues. It’s important to find a way through and keep the best interest of the children at the fore, which can be difficult when individuals are hurting and, in most cases, feel some case of being wronged.
This youtube clip shared recently by a colleague may help those going through separation gain an insight about how high conflict can affect children and to consider the child’s view point.
At Voice Lawyers, we care about helping our clients to assist their children in feeling secure during the highly emotional event that separation of parents can be. We can offer sensitive and caring advice in relation to parental responsibility.
Voice Lawyers provide commercial and private legal services.
Voice Consultants & Advocates provide non legal business development coaching and mediation. If you would like advice call Voice Lawyers on (02) 92318602 to make an appointment.
Kayte Lewis is principal lawyer at Voice Lawyers, practicing in commercial and family law; a nationally accredited mediator and professional development specialist with a passion for communication and helping people find their voice.