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, be civil around them.
Divorce can be complex enough on its own, but when you bring children into the equation, it can lead to child custody disputes, and in some instances, legal proceedings, if you want to apply for sole parental responsibility, which is colloquially referred to as sole custody.
What is parental responsibility?
While sole custody, full custody and child custody are still common in everyday conversation, the term “custody” is no longer used in the Family Law Act 1975 (Cth) and now uses the term parental responsibility.
It is also important to understand that parental responsibility only covers major long-term decisions about your child.
It does not cover living arrangements, how much time a child spends with each parent, or day-to-day visitation.
Those matters are dealt with separately through parenting arrangements.
This is a critical distinction because many people assume that having sole parental responsibility means the other parent cannot see the child, which is not necessarily the case.
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.
If you are named as a parent on the child’s birth certificate, you automatically have parental responsibility for that child.
The only way for this responsibility to change is through a court order, either a consent order where both parents agree, or an order made after a court hearing.
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 sports after school or wants to see friends on the weekend then you can make that decision by yourself.
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 the other parent have the same right to make decisions regarding children of the relationship.
When determining whether equal shared parental responsibility or sole parental responsibility is appropriate, the Court considers what is in the best interests of the child.
Section 60CC of the Family Law Act 1975 sets out two primary considerations that guide the Court’s decision :
- the benefit to the child of having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second consideration, protecting the child from harm, is given greater weight.
This means that where there is evidence of abuse or family violence, the Court will prioritise the child’s safety over maintaining the presumption of equal shared parental responsibility.
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
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.
It is worth noting that parental responsibility is not automatically granted to a stepparent.
If you marry or enter a de facto relationship with a child’s biological parent, you do not gain parental responsibility by default, you would need to apply for a parenting order through the Court.
When is sole parental responsibility appropriate?
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.
However, there are several situations where the Court is more likely to consider sole parental responsibility to be in the child’s best interests.
These include :
Domestic violence or abuse : If there is evidence of violent, abusive or neglectful behaviour by one parent or a member of their family towards the child or the other parent, the Court may determine that sole parental responsibility is necessary to keep the child safe.
Mental health issues : If a parent has mental health conditions that compromise the child’s wellbeing or their ability to participate in sound decision-making for the child, the Court may award sole parental responsibility to the other parent to ensure a stable and safe environment.
Substance abuse : If a parent engages in substance abuse or other risky behaviours that could endanger the child’s safety, this may result in the other parent being awarded sole parental responsibility.
Inability to parent : A parent’s capacity to care for their child may be affected by a serious disability or illness. In these circumstances, the Court may award sole parental responsibility to the other parent or an appropriate guardian.
Absence or refusal to participate in parenting : If a parent is absent from a child’s life or consistently fails to participate in important decision-making, the Court may grant sole parental responsibility to the parent who is actively involved.
High conflict between parents : If the parents are continuously unable to cooperate or communicate effectively enough to make joint decisions for the child, sole parental responsibility may be granted to one parent so that effective decisions can still be made.
Australia’s family law system encourages children and parents to have meaningful relationships and will generally only grant sole parental responsibility to one parent when the welfare of the child is at risk.
For more detail on the specific legal provisions the Court relies on when making these decisions, see the section below on when a court can order sole parental responsibility.
Sole parental responsibility does not automatically mean the other parent cannot see or communicate with the child.
Unless a parenting order specifically restricts contact, the child may still be able to spend time with and communicate with the other parent.
In some cases, supervised visitation may be the most appropriate arrangement.
For example, where sole parental responsibility was granted due to family violence but the Court still considers it beneficial for the child to maintain some level of contact.
If the other parent was paying child support then they still need to pay their share of child support even if the Court grants you sole parental responsibility.
When you and the other parent live in close proximity to each other, 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.
Applying for Sole Parental Responsibility
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.
Sole parental responsibility does not always require a contested hearing. If both parents agree that one parent should have sole parental responsibility, this can be formalised through a consent order without the need for a trial.
Where the matter is contested, 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.
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
Speak to a family lawyer about obtaining sole parental responsibility
Unified Lawyers is one of the fastest growing Family Law firms, with a team of experienced child custody lawyers in Sydney, Brisbane & Melbourne.
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 in Sydney, Melbourne, Brisbane, and Gold Coast our family lawyers are ready to help.
For an initial consultation give us a call on 1300 667 461 or book an appointment with us and see how we can help you.