In the face of a global pandemic, it is no surprise that things change. While the full impact of the outbreak is uncertain, we are adapting to minimise the impacts on our clients. This week we unpack how the coronavirus impacts parental responsibilities.
We make hundreds of decisions about our children every day: what to pack in their lunch boxes, which outfits to dress them in and what time of evening to put them to bed.
In simpler times, minor day-to-day decisions would not invoke parental responsibility obligations. That’s because they have no bearing on the longer-term care, welfare and development of our children.
But COVID-19 (caused by the current coronavirus) may change this. To understand the impact of the current pandemic on parental responsibility obligations, we need to go back to basics.
What is parental responsibility?
Parental responsibility is defined by Section 61B of the Family Law Act 1975 (Cth) as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
A key function of parental responsibility is making decisions about major long-term issues. This includes those decisions related to a child’s education, religion, culture and health.
There are different types of parental responsibility and the obligations that flow will then depend on the circumstances at hand. We explore these below.
If there are no orders (consent or judicial) for parental responsibility
In these circumstances, each parent has joint and several parental responsibility for the child.
This is true regardless of whether parents are married, de facto partners, separated or divorced. However this is only as long as there are no orders transferring parental responsibility (or some part of it) to another person.
In practice though, parents are able to make decisions about major long-term issues impacting upon their child, independent of the other parent. Normally, parents are not obligated to consult with the other parent before such decisions are made unilaterally.
If there are orders for equal shared parental responsibility (ESPR)
Where orders for ESPR exist, both parents have a legal obligation to make joint decisions about major long-term issues.
It is important to remember that ESPR is not the same as shared parenting or a child spending equal time between parents.
In practice, parents must consult and reach agreement before making any decisions about major long-term issues impacting upon their child. Such decisions cannot be made unilaterally.
If there are orders for sole parental responsibility (SPR)
Where orders for SPR exist, one parent will have more power to make decisions about major long-term issues. The allocation of sole parental responsibility can be in totality, or in relation to a number of major long-term issues.
For example, it is possible for parents to have ESPR except in relation to medical issues, for which only one parent has SPR. The Family Court considers the award of SPR on a case by case basis. As a starting point, the Family Court presumes that ESPR is in a child’s best interests. Evidence to the contrary can rebut this presumption.
In practice, a parent with SPR is the only parent able to make decisions about major long-term issues for which they have such responsibility. There is no obligation to consult with the other parent before independently making a decision.
How the coronavirus impacts your parental responsibilities
The coronavirus doesn’t change the allocation of parental responsibility and the obligations that flow from it. It does, however, have an impact on which decisions relate to “major long-term issues”.
Minor day-to-day decisions could become more serious during this health crisis. This is because they could now potentially have a significant impact on your child’s care, welfare and development. For example:
- taking your child on public transport;
- taking your child to a public place;
- visiting family members and friends;
- travelling with your child; and
- sending your child to school.
Usually, these are the decisions we make without thinking twice.
For those with inherent parental responsibility or SPR there may be no need to change how you make these decisions.
For those with ESPR, consider each decision involved in your child’s daily routine, whether those decisions have a potential impact on your child’s care, welfare or development, and if so, discuss them with the other parent.
To consult or not to consult
Before the coronavirus outbreak, you would send your child to school every weekday when they were in your care, without consultation. If necessary you would make a decision to keep your child home from school for a “sick day” or to attend an appointment, without consultation.
This pandemic poses social distancing challenges and rapidly evolving health concerns. At this point in time, the Department of Education has not closed down your child’s school. However, their attendance is no longer compulsory. In light of these new circumstances it is now more important than ever to:
- communicate openly and co-operatively with the other parent;
- discuss the impact on your child’s care, welfare and development of sending your child to school and conversely, not sending your child to school; and
- reach an agreement as to next steps.
Failing to consult could leave you in breach of your equal shared parental responsibility obligations. In any event, Government advice and your child’s best interests should shape your parenting.