Key Takeaways:
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- Parental responsibility refers to the duties and authority parents have for making major decisions affecting the child’s well-being.
- Sole parental responsibility means one parent can make major decisions without consulting the other parent.
- Sole parental responsibility may be appropriate in situations involving domestic violence, mental health issues, substance abuse, or inability to parent effectively.
- Obtaining sole parental responsibility requires applying to the court with evidence supporting the child’s best interests.
If you’re a parent and you’ve separated from your child’s other parent or you’re considering doing so, chances are that you’ve heard a variety of terms in relation to the responsibility and custody of children.
Child custody, parental responsibility and parenting is a complex and confusing area of family law with terms like sole custody, full custody, shared parental responsibility and sole parental responsibility being used together and interchangeably. So, in this article, we’re going to help to provide some clarity around these terms as well as provide you with more information about sole parental responsibility and when it is an appropriate option.
Family law terminology in Australia
The various legal terms and “jargon” used in the family law system can make it quite difficult to understand the rules and often causes frustration for people involved in family law matters.
This confusion is completely understandable as many terms we use colloquially are no longer used in the family law system, with “custody” being a prime example of this.
Child custody, full custody, sole custody, any terms relating to custody, while common in everyday language, are no longer referred to in the Family Law Act 1975 (the main legislation of the family law system). Instead, the term parental responsibility is predominantly used with other terms like “spend time” “live with” also being used.
Parental responsibility refers to the duties, powers, responsibilities and authority that parents have in relation to a child. These duties, powers, responsibilities and authorities are for making major decisions for the child. These decisions are those that usually will have long-lasting impacts like where they will go to school and medical/health-related decisions.
While the decisions that fall under parental responsibility are considered major decisions, it’s important to note that parental responsibility is not about living with or spending time arrangements between parents and children.
This is another reason for confusion because child custody and custody-related terms are commonly used as a “catchall” term where they are used in a way to imply complete control over the child’s care and upbringing, including their living arrangements and visitation. When people refer to sole custody or full custody, they often mean it in a way where the other parent has limited or no involvement.
To help clarify this some more, let’s look at parental responsibility in more detail.
What is parental responsibility?
So, we mentioned above that parental responsibility refers to the duties, powers, responsibilities and authorities that parents have in relation to their children and it is defined in section 61B of the Family Law Act 1975.
As the child’s parent, you have the right to make decisions that relate to the care, welfare and development of that child. These decisions are considered to be major long-term issues and include:
- The education of the child, both their current education and future education;
- Medical and health related procedures and treatments;
- The religious and cultural upbringing of a child;
- Living arrangements that could impact their ability to spend time with their other parent (not to be confused with other living arrangements);
- Travel document authorisation; and
- Changing the child’s name.
If you’re named as a parent on the child’s birth certificate, you automatically have parental responsibility for that child and the only way for you to not have this responsibility is via court orders, where you either agree through a consent order to waive your parental responsibility or after a hearing, the court orders a change in the parental responsibility.
On top of automatically having parental responsibility if you’re named on the child’s birth certificate, this parental responsibility is considered to be equal between the parents and it means that the parents have to make a genuine effort to consult with and come to an agreement regarding the major long-term issues we listed above.
Even when the parents of a child separate, the family law system operates on the presumption of equal shared parental responsibility and neither parent loses this responsibility.
As a child’s parent, it is possible to apply for sole parental responsibility, which we will talk about in more detail later on. And as a significant person in the child’s life, it is possible to apply for parental responsibility, however, parental responsibility isn’t automatically awarded or guaranteed in instances where you marry a child’s biological parent and become their stepparent, as an example.
Before we talk more about sole parental responsibility, let’s discuss custody in a little more detail.
What do people usually mean by custody?
Commonly, when people refer to child custody, they usually mean not only the aspect covered by parental responsibility, but also the living and visitation arrangements.
The living and visitation arrangements are not covered under parental responsibility, rather they are managed under parenting arrangements, which help to regulate how the parents will spend time with their children. Spending time may include living arrangements, communication and visitation, and these arrangements can be made through parenting plans, consent orders or parenting orders made by a court. If you would like more information about parenting arrangements, read this article.
It’s important to be aware of the numerous implied meanings of custody to ensure that when you’re discussing parenting matters, including living arrangements and responsibilities, you’re discussing the right topic.
This distinction is important because it’s possible for various living and spending time arrangements to co-exist with equal shared parental responsibility. For example, both parents could have equal responsibility for the child, but one parent is the primary carer, and the child lives and spends more time with that parent than with the other.
What does it mean to have sole parental responsibility?
Sole parental responsibility means that you do not need to consult with your child’s other parent before making any of the major decisions we mentioned above that concern your child.
Some of the things you could decide without the other parent’s agreement if you have sole parental responsibility include where the child will go to school, if you want to apply for a passport for the child, and the religious upbringing of the child.
As a parent with sole parental responsibility, you are solely responsible for making these long-term major decisions for your child, however, it does not mean that your child can’t spend time with their other parent, unless there is a parenting order stating otherwise.
Equal parental responsibility vs sole parental responsibility
As we touched on above, the Australian family law system works on the presumption of both parents having equal shared responsibility. This means that parents automatically have parental responsibility, and this is because is believed to be in the best interests of the child.
The best interests of the child are an important consideration in family law, and decisions made by the court, as well as by parents outside of the court, should be made with the child’s best interest as the paramount consideration.
The best interests of the child are based on a number of considerations, with two primary considerations, which are:
- the benefit to the child of having a meaningful relationship with both of the child’s 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 latter of these two considerations is given more weight. This information is further clarified in the Section 60CC of the Family Law Act 1975.
While this presumption exists, equal shared parental responsibility may not always be the best option, and this is entirely dependent on your circumstances. Below, we will discuss situations where sole parental responsibility is likely to be more appropriate than shared parental responsibility.
When is sole parental responsibility appropriate?
With the best interests of the child in mind, sole parental responsibility is likely to be considered the most appropriate option when the child’s wellbeing is compromised.
While the specific circumstance of every situation is unique, below we’ve listed some of the situations where sole parental responsibility is potentially the most appropriate option:
Domestic violence and/or abuse
If there is evidence of abusive, violent or neglectful behaviours by one parent or a member of their family towards the child or other parent, it may be in the child’s best interests for one parent to have sole parental responsibility.
Mental health issues
If a parent has mental health issues that could compromise the child’s well-being, the court may decide to order sole parental responsibility to one parent to ensure a stable and safe environment for the child.
Substance abuse
If a parent engages in risky behaviours such as substance abuse, this could result in the other parent being awarded sole parental responsibility as these behaviours could risk the safety of the child.
Inability to parent
A person may have their ability to parent impacted by a disability or illness with the court awarding the other parent or an appropriate guardian with sole parental responsibility.
Absence or failure to participate in parenting
If a parent is absent from a child’s life or refuses to participate in important decision-making for their child, the court could grant sole parental responsibility to the other parent.
High conflict
If the parents are continuously unable to cooperate or make decisions due to high levels of conflict, sole parental responsibility could be granted to one parent to ensure effective decisions can be made for the child.
The family law system in Australia encourages children and parents to have meaningful relationships and usually only grants sole parental responsibility to one parent when the welfare of the child is in danger, such as in the scenarios we mentioned above.
How hard is it to get sole parental responsibility?
It isn’t easy to get sole parental responsibility and it can only be granted by the Court. The Court is usually reluctant to grant it unless it is in the best interests of the child.
The scenarios we mentioned earlier are examples of when sole parental responsibility could be granted and the Court will always prioritise the wellbeing of the child and their safety over anything else, including their relationship with their parents.
However, an application for sole parental responsibility is not guaranteed to be approved and will depend on your circumstances and the information you provide.
How do you get sole parental responsibility?
Sole parental responsibility can only be granted by the Federal Circuit and Family Court of Australia and must be applied for through parenting orders.
You will need to apply for orders seeking full parental responsibility and provide evidence and information as to why this is in your child’s best interests.
Before applying for these orders, we highly recommend speaking to a family lawyer. We can help you to understand your options, we can also help to facilitate discussions, negotiation and even mediation with your child’s other parent to help you reach a resolution for your dispute. And if applying for sole responsibility is the most appropriate option for your situation, we can also help to prepare your application.
How does sole parental responsibility impact communication, spending time and visitation?
Parental responsibility is different to spending time, communication and visitation, though if one person has sole parental responsibility, this may have an impact on each of these in various ways, but it does not necessarily mean that just because one parent has sole parental responsibility, the other parent can’t see or speak with their child.
For example, if a parent has been awarded sole parental responsibility, it may be due to the presence of domestic or family violence, so it may be in the best interests of the child for only one parent to have full parental responsibility. However, the child may still be able to communicate with or spend time with the other parent. In this instance, supervised visitation may be the most appropriate option.
As we mentioned above, the family law system does encourage meaningful relationships between parents and children, so depending on the unique circumstances of your situation, one parent having sole parental responsibility could still mean that the child can spend time, visit, and communicate with the other parent.
What if I think my child is in danger?
If you’re concerned about your child’s wellbeing and think you may be in immediate danger, we recommend contacting your local police or applying to the local court for a protection order.
If you’re concerned about your safety but not in immediate danger, you can get in touch with us, and we can help you to understand your options and help you to apply for urgent parenting orders.
Are you involved in a parenting matter?
Whether you’re trying to work out parenting arrangements, you want to understand your legal options or you want to obtain sole parental responsibility, we can help you. Our family law firm is well-experienced regarding a wide range of parenting and children’s matters and we’re here to help you find the best outcome for you and your family.
Our family law services are available Australia-wide and with offices based in Melbourne, Brisbane and throughout Sydney, it couldn’t be easier to get expert family law advice. Call us today on 1300 667 461 or book a consultation online using the button below.
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