Parental responsibility includes making all the major decisions affecting the children, for example:
- What school they should attend;
- What medical treatment they should receive;
- Whether they should be raised with a particular religion;
- What name they should be known by, etc.
If there is no Court order, parents automatically have equal shared parental responsibility and therefore must consult with each other in relation to these issues and attempt to jointly reach a decision that is in the best interests of the children.
When making a parenting order, the Court has to start by presuming that it is in the best interests of the child for the parents to have equal shared parental responsibility. That means that the parents need to jointly discuss and make together the types of decisions outlined above.
In some cases there are exceptions that mean the Court will not order equal shared parental responsibility. These can include, but are not limited to, family violence, child abuse and serious addiction issues. The Court will carefully consider whether these issues are of such concern that the parent should not be involved in jointly making decisions about the children. Sometimes this will include a consideration of whether the other parent’s safety might be at risk, or whether the parents are so unlikely to be able to reach joint decisions that it would have a negative impact on the children.
If the Court decides that equal shared parental responsibility is not appropriate, they will decide which parent should make the major decisions about the children, and may make an order for sole parental responsibility. An order for sole parental responsibility means that one parent can make all of the major decisions affecting the children without consulting the other parent.
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, the Court may make a conditional order for sole parental responsibility. These orders provide for one parent to make the decisions, but require 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 have sole parental responsibility about a particular issue (for example, the child’s education), but that the parents otherwise have equal shared parental responsibility.
Orders for equal shared parental responsibility are the most common orders made. If you think you may need a sole parental responsibility order, for one or more issues relating to your children, Armstrong Legal have specialist family lawyers to provide you with the advice you need.
What is Parental Responsibility?
Parental responsibility is all of the duties, powers, responsibilities and authority which parents have in relation to their children. It deals with the major decisions in a child’s life, for example, which school the child will attend, which doctor the child will attend and what the child’s religion will be. This is dealt with under Section 61D of the Family Law Act.
The Court has two options when allocating parental responsibility:
- Sole parental responsibility; or
- Equal shared parental responsibility.
What is Sole Parental Responsibility?
Sole parental responsibility allocates to one parent the power to make all of the major decisions relating to a child without consulting with the other parent. For example, the parent can unilaterally enrol the child in a school of their choice without the agreement of the other parent.
For a parent to have sole parental responsibility, it must be Court ordered. The Court can also make an Order for one parent to have sole parental responsibility in relation to a specific issue. For example, for a Father to have sole parental responsibility with respect to the choice of the child’s school.
You as a parent, automatically have the ability to exercise parental responsibility, meaning you and the other parent are able to make major long-term decisions for your child both together and individually.In the event you cannot agree about the major long-term decisions for your child, it is possible to apply to the Court for an Order providing you with Sole Parental Responsibility.
An Order for Sole Parental Responsibility means that you can make all of the major long-term decisions for your child without having to consult the other parent. This means you can solely make decisions about:
- Name; and
- Where the child lives.
Practically speaking, it also means you can apply for a passport without the need for the other parent’s signature.
As you can see, the kinds of decisions a parent with Sole Parental Responsibility can make are serious and the Court does not make an Order of this kind lightly. In fact, the Court will presume that parents have Equal Shared Parental Responsibility unless:
- There are reasonable grounds to believe that a parent has committed Family Violence; or
- There are reasonable grounds to believe that a parent has abused the child or another child who was/is a member of the family; or
- It would not be in the child’s best interests.
You can only have parental responsibility by Order of the Court. The Application process can be long and painful. Often an Application of this kind will also be seeking Orders about who your child lives with and the time your child spends with you and the other parent. Allegations of family violence and/or abuse require specific and clear facts set out in an affidavit form with your other, relevant evidence. We recommend seeking advice from a legal professional practising exclusively in family law prior to filing an Application of this kind.
What is Equal Shared Parental Responsibility?
Equal shared parental responsibility enables both parents to make decisions relating to a child in consultation with each other.
What is the Presumption of Equal Shared Parental Responsibility?
When allocating parental responsibility, the Court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This is dealt with under Section 61DA of the Family Law Act 1975. If the Court decides that the presumption of equal shared parental responsibility applies they will make an Order for that to occur.
What Happens if the Presumption of Shared Parental Responsibility Does Not Apply?
If the Court is not satisfied that the presumption of equal shared parental responsibility should apply, the Court will make an Order for one parent to have sole parental responsibility. This may occur if the Court is of the view that there has been:
- abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
- family violence.
Do I Need an Order for Parental Responsibility?
If you are seeking sole parental responsibility you will need a Court Order allocating this to you. If you are seeking equal shared parental responsibility it is presumed that parents have shared responsibility until the presumption is rebutted.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?