Parental Responsibility

Australian family law calls legal responsibility for a child ‘parental responsibility’. The person or persons who have parental responsibility for a child make all the major decisions about the child’s life. This includes decisions about the child’s education, major medical interventions, religious instruction and the child’s name. The person who has parental responsibility for a child in not necessarily the person that the child lives with. This page deals with parental responsibility for children in Australia.

Amendment of Family Law Act

In May 2024, significant changes to the Family Law Act 1975 will come into force. In the past, there was a presumption that parental responsibility for a child would be shared equally between parents. From the 6 May 2024, this will no longer be the case.

Under the changes, the presumption of equal shared parental responsibility is abolished. Instead, the person who is to have parental responsibility for a child will be determined by what is in the best interests of the child. In some cases, this will be equal shared parental responsibility. In other cases, it will be sole parental responsibility.

Equal Shared Parental Responsibility

Where there is no court order in place, the parents of a child have equal shared parental responsibility. This means that the parents consult with each other in relation to long-term issues and attempt to jointly reach decisions that are in the best interests of the children.

In some cases, the court may also make an order for equal shared parental responsibility. This means that two persons must share the duties, powers and responsibilities of parenthood. This will usually be the child’s parents, but it may also include another person such as a grandparent or aunt or uncle.

Where an order for equal shared parental responsibility is made, the persons with parental responsibility must:

• consult each other in relation to each decision
• make a genuine effort to come to a joint decision.

Sole Parental Responsibility

The court will make an order for sole parental responsibility if it considers this is in the best interests of the child. This means that the parent with parental responsibility may make all of the major decisions affecting the child without consulting the other parent.

Conditional order

Sometimes the court has concerns about the ability of the parents to reach joint decisions but still wants to ensure that both parents have some involvement in the decision-making process. In those cases, it may make a conditional order for sole parental responsibility.

A conditional order provides for one parent to make the decisions but requires that parent to first ask for the other parent’s opinion about the issue and take that opinion into account when making the final decision.

Similarly, some families may have difficulty reaching joint decisions about one aspect of a child’s life but no difficulty reaching decisions about all other issues. In that situation, the court has the power to order that one parent make the decisions about a particular issue (for example, the child’s education), but that the parents otherwise share parental responsibility equally.

Decisions that are not long-term issues

Parenting orders often contain terms that require the child to live with a person or spend time with a person who is not the person with parental responsibility. When this occurs, the person who the child is living with or spending time with is not expected to consult with the person or persons who have parental responsibility about day-to-day decisions about the child. However, when a major long-term decision needs to be made, the person/s with parental responsibility must be consulted.

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