Sole Parental Responsibility

The term ‘parental responsibility’ refers to the responsibilities and duties that attach to parenthood. It involves making major long-term decisions about matters that affect a child such as their education, religion and any major medical interventions they receive. Parental responsibility can be shared by two people, or it can be held by a single person. This page deals with sole parental responsibility.

Legislation

Parental responsibility is governed by Division 2 of the Family Law Act 1975.

In 2023, the Family Law Amendment Act was passed, making major changes to the operation of the Family Law Act, particularly with respect to parenting orders. Those changes come into effect on 6 May 2024.

Prior to the changes, there was a presumption that parents would have equal shared parental responsibility for their children. Under the changes, that presumption is abolished. This means that a court may now make an order for equal shared parental responsibility or for sole parental responsibility depending on which order is in the best interests of the children.

Sole vs shared parental responsibility

A person who has parental responsibility for a child is responsible for making major long-term decisions for the child. When parental responsibility is shared between two people, the parties need to consult with each other about these decisions and come to an agreement.

When parental responsibility is held by one person only, that person may make major long-term decisions about the child on their own. There is no need to consult with other family members.

An order for sole parental responsibility means that the person can make the decisions about the following areas of the child’s life on their own:

• education;
• healthcare;
• religion;
• culture;
• travel;
• name.

Law on parental responsibility prior to the changes

Prior to 2024, courts were required to apply a presumption that parents should have equal shared parental responsibility for their children.

This presumption applied unless one of the following circumstances existed:

• There were reasonable grounds to believe that a parent had committed family violence; or
• There were reasonable grounds to believe that a parent had 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.

This presumption was abolished after a parliamentary committee found that the system failed to prioritise the safety of children and was being applied in a way that put children at risk.

Best interest of the child

When making any parenting order, the court’s paramount consideration is the best interests of the child. How this is determined in set out in section 60CC of the Family Law Act.

In assessing what orders are in a child’s best interests, the court must consider:

• What arrangements promote safety
• The views of the child
• The developmental, psychological, emotional and cultural needs of the child
• The capacity of each person who is proposed to have parental responsibility to provide for those needs
• The benefit to the child of having a relationship with their parents and others who are significant to them
• Anything else that is relevant to the child’s circumstances.

If there is a history of family violence, abuse or neglect, the court must consider this along with any family violence orders that are in place when assessing the above matters.

If the child is Aboriginal or Torres Strait Islander, the court must also consider their right to enjoy their culture and the impact of any proposed orders on that right.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.