When you separate from your spouse you may have split on good terms where you can retain a friendship with them, or at the very least, are civil around them.
Divorce can be complicated enough on its own but when you bring children into the equation it can lead to disputes and in some instances, legal proceedings if you want to apply for sole parental responsibility, which is colloquially referred to as sole custody.
Unified Lawyers has a team of family lawyers who specialise in legal proceedings and have expert knowledge of the Family Law Act 1975 (cth). They will do their absolute best to help you get the outcome that you want.
This article will attempt to provide you with information about sole parental responsibility and how to get a Parenting Order.
What is parental responsibility?
Before you even commence legal proceedings, you need to understand what parental responsibility is.
Section 61b of the Family Law Act 1975 (Cth) refers to parental responsibility as being the powers, responsibility and authority that the parents of a child under the age of 18 have for that child. Australia’s family law system operates under the presumption of equal shared parental responsibility which means that both you, and the other parent of the child will have equal responsibility for the day to day decisions related to the child.
Equal shared parental responsibility does not necessarily mean that you will both spend an equal amount of time or even significant time with the child. Depending on your living arrangements, you may only see your child on special occasions such as birthdays, Christmas and school holidays.
Parental responsibility means that you both have the responsibility to make decisions about major long term issues such as:
- cultural matters;
- medical treatment;
- the child’s name;
- religious upbringing;
- cultural upbringing;
- Health matters; and
- Education issues.
When the Court rules in favour of equal shared parental responsibility you and the other parent must come to a mutual agreement about the aforementioned matters, whereas decisions related to the daily routines of a child can be made without consulting the other parent.
For example, if your child wants to spend time playing sport after school or wants to see friends in the weekend then you can make that decision by yourself.
What does it mean to have sole parental responsibility or sole custody?
When you have sole parental responsibility, you can make all of the decisions about the child’s future yourself without seeking agreement from the child’s other parent. Some of these decisions may include applying for a passport for the child.
If you want sole parental responsibility for your child then you will need to apply to the Family Court of Australia for sole parental responsibility also known as sole custody. Generally, the Court will only grant sole custody if they consider it to be in the child’s best interests for you to be awarded sole custody. They will consider the nature of the relationships of the child to you and the other parent. They will also assess if there are reasonable grounds to believe there has been abuse of the child or if there is the risk of psychological harm or child abuse.
Sole custody can mean that you and the other parent, or even grandparent spends equal time with the child however, as the parent with sole parental responsibility you are solely responsible for any decisions made about the child.
How is sole parental responsibility different from shared parental responsibility?
Sole parental responsibility differs from equal shared responsibility because you do not have an obligation to make a genuine effort to consult the other parent when making long-term decisions about your child. You can make decisions by yourself without consulting the other parent such as:
- your child’s living arrangements;
- how you will discipline your child;
- applying for a passport for your child;
- the amount of contact they will have with the other parent or a member of the parent’s family such as an aunt, uncle, brother, sister or other relative.
On the other hand, shared equal parental responsibility means that you and other parent have the same right to make decisions regarding children of the relationship.
In the case of Small and Small (2016) FamCa 433, the Family Court gave the mother sole custody because there were extenuating circumstances. The court considered various facts including that the father had not spent a significant amount of time with the children and that there was evidence suggesting they had been exposed to domestic violence and sexual abuse. As the children had special needs, the Court decided it would be in their best interests to live with their mother.
Although the mother was given sole custody in this particular case, mothers will not always receive sole custody. We have a team of family lawyers who specialise in helping dads with custody disputes. We will guide you ever step of the way with a focus on helping you keep your rights. We listen to you when you tell us your fears and will devise a strategy so you can maintain a relationship with your children.
Who can apply for sole parental responsibility?
You do not need to be divorced or separated to apply for sole parental responsibility. Parents can still apply for a Court Order even if the child’s parents are still married or living together. There are also options for grandparents.
If you want to apply for sole custody you must make an application to the Federal Circuit Court of Australia for a Parenting Order that grants you sole custody. You will need to prove that the presumption of shared equal parental responsibility is not in the best interests of your child and that they will be subject to physical or emotional harm.
The legal process can be complicated so we recommend contacting one of our family lawyers who can guide you throughout the application process.
How hard is it to get sole parental responsibility?
It is extremely rare for the Court to award sole parental responsibility and operates under the presumption that equal shared parental responsibility will be best for the child. The Court always prioritises your child’s best interests and has a responsibility to protect them from harm.
For the Court to award sole custody to you, you will need to supply sufficient evidence that proves beyond reasonable doubt that the child will be harmed by the other parent. Evidence may include:
- police statements proving physical violence or sexual assault
- Proof of an AVO if you have one against the other parent
- documents showing that the other parent has mental health issues which inhibit their ability to make sound decisions that impact the child.
- proof that the relationship between both of the child’s parents has broken down
- information showing that one parent is making decisions that contradict the child’s best interests.
If there is reasonable reason to believe your child will suffer physical or psychological harm by having a meaningful relationship with both parents, then the Court will give greater weight to this evidence over the presumption of equal shared responsibility.
How does sole parental responsibility work in practice?
When you have sole parental responsibility you will have sole responsibility for making decisions of a long-term nature that affect the children of the relationship. For example, if you want to enrol your child in a new school then you do not need to ask the other parent for agreement. You can go ahead and make that long term decision on your own. Even if you have sole parental responsibility the other parent can still make minor insignificant decisions such as spending time with friends after school or what clothes to buy them.
If the other parent was paying child support then they still need to pay their share of child support if the Court grants you sole parental responsibility.
When you and the other parent live in close proximity to eachother, it may be possible for the child to spend equal time with you and the other parent as sole parental responsibility is not measured on time, rather it is measured on the capacity to make decisions about your child.
Seeking parenting orders
In order to get sole parental responsibility you will need to apply to the Family Court of Australia for a Parenting Order. A Parenting Order is a legal ruling that lays out the terms of the parenting arrangement that you have with the other parent of your child.
A Parenting Order can either formalise an existing agreement between the parents, in which case it is a Consent Order formalising the arrangement; or it can be made after a Court hearing. In this scenario, a Parenting Order will only be made after both parties have attended a Family Dispute Resolution Conference with a mediator and after they have read the Marriage, Families and Separation brochure published by the Federal Circuit Court.
Before you apply to the Court for a Parenting Order, or for a change to an existing Order, we recommend contacting our family lawyers who specialise in parenting matters and can give you expert legal advice.
When a court can order sole parental responsibility
A Court is required, under subsection 61da(1) of the Family Law Act to rule under the presumption of equal shared responsibility as it is deemed to be in the best interests of the child for each of the child’s parents to have equal responsibility. The presumption only relates to the allocation of parental responsibility. It does not relate to the amount of time that your child spends with you or the other parent.
A Court can order Sole Parental Responsibility under subsection 61da(2) if there are reasonable grounds to believe that:
- the child has been abused by the other parent or a member of the person’s family
- the child has been a victim of, or exposed to family violence.
If your child has been abused then you will need to prepare supporting evidence so the Court can make a ruling based on evidence. We suggest that you speak to one of our family lawyers who can help you through the difficult time and manage the process for you. We understand that it is already a stressful time without having to familiarise yourself with all the legal terminology and paperwork. Our supportive and compassionate family lawyers will help prepare and lodge any documents for you. They can also represent you in a Court hearing.
Who can apply for an urgent order for sole parental responsibility?
You can apply for an urgent order for sole parental responsibility in an emergency where there is an immediate risk to the child’s safety. If your application for an Urgent Order is approved then an interim order will be made to keep the child safe.
The Court can also make an interim order which will last from the date that it is made until evidence can be heard at a final hearing.
Normally you cannot apply for an interim order without first applying for a final order. If you are worried that your children are in danger from the other parent then you can also contact the NSW Police or apply at the Local Court for an ADVO (Apprehended Domestic Violence Order) which will protect you and your children.
Related links & resources
- Family Law Act 1975 (Cth)
- Family Court of Australia
- Family Court of Australia Legal Database – case law from 1976 onwards
- Federal Circuit Court of Australia
- Local Court of NSW
- NSW Department of Communities and Justice
- NSW Police
Speak to a family lawyer about obtaining sole parental responsibility
Unified Lawyers is one of Sydney’s fastest growing Family Law firms, with a team of lawyers who specialise in child custody disputes. Our team can help both mothers and fathers wishing to apply for sole parental responsibility.
The breakdown of a relationship can be fraught with emotion, anxiety and fear. Having the right team behind you supporting you in your application for sole parental responsibility can remove some of your anxiety.
With offices all over Sydney, from Bondi in the east to Parramatta in the west, we are conveniently located.
We have over 300 positive reviews from clients on the internet and offer quality and value for money. Our lawyers will always be upfront and honest with the legal advice that they give you, ready to answer any questions you have throughout the process.
For an initial free consultation give us a call on 1300 667 461 and see how we can help you.
