Family LawNewsA Crash-Course on Parental Responsibility

Parental Responsibility is a common term used in family law proceedings, and refers to the ability to make important decisions for a child.[1] There is a presumption in parenting matters of equal shared parental responsibility, and a Court will only assess this presumption as having been rebutted (or disproven/not applicable) in certain cases where a child’s health, welfare and development is at risk; there has been family violence or abuse of a child; or it is inappropriate.[2]

This means, unless otherwise ordered by a Court, major decisions concerning a child must be made jointly between parents even after their relationship ends.[3] It is important to know what decisions can be made solely, and those that require joint consideration, after a separation to ensure you are both upholding, and being afforded, your parental rights and responsibilities.

The meaning of Parental Responsibility:

The overall concept of “parental responsibility” goes beyond day-to-day choices, such as what to wear or where to eat, instead relating to those decisions which will impact the child’s life dramatically. Some examples of these types of decisions are:

• Where a child lives if relocating and whom a child lives with – for example, if a party wants to relocate the children from their primary residence, all persons who have been awarded or have assumed parental responsibility must agree, or a Court should approve this relocation;
• Where a child goes to school – for example, all persons with parental responsibility must agree to and sign a school enrollment;
• Whether a child has a passport – all persons with parental responsibility must sign the child’s passport application if they are under 18;
• A child’s name – all persons with parental responsibility must agree to any name changes of a child;
• Medical decisions and treatment of a child – all persons with parental responsibility must generally agree to major medical treatments such as surgeries or major treatments like chemotherapy (save for in emergencies).

The parties are each required to consult one another about their position on an issue, and genuinely try to agree on an outcome for the child. [4]

Who can have parental responsibility?

Parental Responsibility is presumed in relation to a child’s natural (“biological”) parents, however it can also be awarded to other people. Some examples of this include kinship carers (such as family members); guardians appointed pursuant to Permanent Care Orders; the relevant Department in each State for child welfare (such as the Department of Families, Fairness and Housing).

Sole Parental Responsibility

A party can have sole parental responsibility for a child, where a Court makes an Order permitting this. This occurs in circumstances where:

• A party relinquishes their parental responsibility rights (i.e. they willingly agree to not be involved in making decisions for their child).
• A Court decides a party should not have parental responsibility rights (i.e. where it is impractical or not suitable because they are unreasonable or unable to act in the child’s best interests).

In this situation, a party is awarded “sole” parental responsibility by an order of the court, and that party does not agreement or authority from the other party and can make major decisions and sign documentation relating to this, on their own.

It is noteworthy that a party may have sole responsibility in relation to certain things (such as, having the sole responsibility schooling), and joint responsibility as to others (such as medical decisions). [5] Further, even where a party no longer has parental responsibility, they are usually still consulted or notified of major decisions relating to a child.

Conclusion

Each parenting matter is different, and there may be decisions unique to a circumstance that fall within this scope. It is always important to consult a lawyer as to your individual situation.

Article written by Elly McQuinn of our Melbourne office. Please reach out to our Family Law team if you require any assistance.

[1] ss. 4(1), 61B Family Law Act 1975 (Cth) (“FLA”).

[2] ss. 61C, 61DA Family Law Act 1975 (Cth); Director-General of the Department of Human Services (NSW) & Tran and Anor [2010] FamCAFC 151 at [44].

[3] Goode & Goode [2006] FamCA 1346 at [30].

[4] s 65DAC(3)(b) FLA.

[5] s. 61D FLA.