Parental Responsibility. What is the difference between sole parental responsibility and equal shared parental responsibility?
Until a child turns 18 years of age, a child’s parents will generally have parental responsibility for that child. When parents separate the question of who has parental responsibility for their children can become problematic.
In this article we look at what constitutes parental responsibility and what Orders the Family Courts can make in relation to parental responsibility.
What is parental responsibility?
In the Family Law Act 1975 parental responsibility is defined to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[1]
Equal Shared Parental Responsibility
The Family Law Act provides both a child’s parents will have parental responsibility for a child.[2] This applies even if there has been a change to the parent’s relationship – such as a separation.[3] Unless there is an order of the Court or a parenting plan that allocates parental responsibly to one parent, or to another person, both parents will have parental responsibility for the child.
In the Family Law Act 1975 there is a presumption that it will be in the child’s best interest that both parents have equal shared responsibility for the child,[4] however, this presumption does not apply where there has been family violence, abuse of the child or another child in the family by a parent.[5]
When parties have an Order for equal shared parental responsibility, they are required to make decisions about major long-term issues jointly.[6] These major long-term issues include: -
where the child attends school;
what medical treatment the child receives or what doctor the child visits;
whether the child observes a particular religion;
what name the child is known by; and
where the child resides.[7]
The parties are required to consult and make a genuine effort to come to a joint decision about the issue.[8]
Parents are not required to consult about issues that are not major-long term issues.[9]
Sole Parental Responsibility
Where there is evidence that suggests equal shared responsibly is not in the child’s best interests, the presumption in favor of equal shared parental responsibility can be overturned and one party can be allocated sole parental responsibility for the child.
When one parent has sole parental responsibly, they are generally not required to consult with the other party about those major long-term issues. However, that is not always the case and will depend on the wording of their sole parental responsibility order.
In some matters a parent may have sole parental responsibility, but they are required to consult with the other parent before they make a decision. In other matters, a parent may be required to give the other parent notice of an intended decision before they make that decision. Some matters there may be no requirements to consult with the other parent at all.
It is very important that parties ensure they understand what they can and cannot do under their orders. If you are unsure about what your obligations are under your orders, you should seek legal advice.
Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.
[1] Section 61B Family Law Act 1975 (Cth).
[2] Section 61C(1) Family Law Act 1975 (Cth).
[3] Section 61C(2) Family Law Act 1975 (Cth).
[4] Section 61DA(1) Family Law Act 1975 (Cth).
[5] Section 61DA(2) Family Law Act 1975 (Cth).
[6] Section 65DAC(2) Family Law Act 1975 (Cth).
[7] Section 4 Family Law Act 1975 (Cth).
[8] Section 65DAC(3) Family Law Act 1975 (Cth).
[9] S65DAE Family Law Act 1975 (Cth).