Equal Shared Parental Responsibility vs Sole Parental Responsibility
Initially, the court works with the presumption that equal shared parental responsibility is in the child’s best interests.
This means that parents have an equal say on the major long-term issues affecting their child and that they must make a genuine effort to consult with each other to reach a consensus when making these kinds of decisions.
However, if both parents having equal shared responsibility is determined to NOT be in the child’s best interests, the court may grant sole parental responsibility to one parent.
When someone has sole parental responsibility, it means they do not need to consult with their ex-partner to reach an agreement about the child’s life and can make all decisions themselves.
Sole parental responsibility can be granted for a specific issue or set of issues only, or it can be given entirely to one parent for all major long-term issues and other decisions.
Parental responsibility is not the same as custody or visitation and communication rights between a parent and child.
Having equal shared responsibility does not mean the parents automatically have equal custody, and if one parent has sole parental responsibility, that does not mean the other parent does not any spend time with their child.
The court is usually reluctant to grant sole parental responsibility, as it generally considers a relationship with both parents to be in the best interests of a child, and that this should be supported after separation.
However, this is only in the absence of violence, abuse or serious conflict between the parents.
The main considerations of the court are:
The benefit to the child of having a meaningful relationship with both of their parents
The need to protect the child from physical and psychological harm, and from being subjected or exposed to abuse, neglect and family violence.
The second consideration of protecting the child from harm carries greater weight.
Therefore, if one parent is causing the child harm or exposing them to harm, the court will determine that a meaningful relationship with that parent is of no benefit to the child.
In circumstances where a relationship with one of the parents is harmful to the child, the court will consider sole parental responsibility as a solution.
This is especially true for cases involving physical, emotional or sexual domestic abuse.
Parental responsibility is subject to parenting orders.
Parenting orders can deal with many different issues, including who the child will live with, how they will communicate with a parent and any other aspect of their care, welfare and development.
A parenting order can be made when the parents agree on the parenting arrangements for their child, and in this case it is a consent order that formalises the agreement.
Otherwise, parenting orders are made after a court hearing or trial.
For a person to attain sole parental responsibility, they must prove that continuing a relationship with the other parent is not beneficial to the child.
Parenting order applications can be made seeking sole responsibility for one issue affecting the child, such as their education, or for all aspects of the child’s life and development.
Sole Parental Responsibility Example
Malcher & Malcher  FamCA 1063 (9 December 2016)
Mr and Ms Malcher married in 2000 and had three children born in 2002, 2003 and 2006. They separated in 2011.
This 2016 hearing in Sydney determined the parenting arrangements for the children, as well as other subjects of dispute including property division and child support.
Ms Malcher sought parenting orders that would grant her sole parental responsibility for all major long-term issues in respect of the children including, but not limited to, education, religious and cultural upbringing and health.
Mr Malcher sought equal shared parental responsibility for the three children.
Among the main issues affecting the judgement was the inability of the husband and wife to communicate in a rational, appropriate, respectful way.
The husband consistently failed to respond to communication by the wife, and when he did communicate it was with disrespect and disdain. In public places together, he often sought to humiliate or intimidate her.
The wife gave accounts of domestic violence perpetrated towards her by the husband throughout their relationship.
This included the husband hitting the wife and throwing objects at the wife, sometimes in front of other people or the children.
The husband denied these incidents, but the judge did not accept his denials and determined that the wife was telling the truth.
A point of conflict regarding major long-term decisions for the children was the choice of school for the youngest child.
The husband and wife were unable to reach any agreement on this point.
Sole parental responsibility was granted in favour of the wife.
This was due to, among other reasons, the failure of the parties to engage in appropriate communication and the husband’s attitude towards the wife.
There was also very little to criticise about the wife’s parenting capacity.
The children were primarily to live with the wife but spend time with the husband during the school term and school holidays.
Parenting Orders Reasons
Robertson & Sento  FamCAFC 49; (31 March 2009)
The case of Robertson & Sento shows the necessity for adequate reasons to be given in a judgement on parental responsibility.
This 2009 case from Brisbane was an appeal made by the father, Mr Robertson, against orders made at an initial hearing in 2007 concerning the parenting of their child, who was born in 1998.
The judge in the first hearing ordered that:
The child live with the mother, Ms Sento
The child spend time with the father for five nights a week every fortnight in a single block
The child spend each holiday time other than Christmas equally with both parents
The parents have joint parental responsibility in all areas except for health and music tuition, for which the mother would have sole parental responsibility
Regarding the judgement on sole parental responsibility for healthcare, it was determined that were the mother and father to have equal shared parental responsibility for this issue, the child’s best interests would not be served due to the parents’ failure to reach an agreement.
Similarly, for music tuition, the mother was granted sole parental responsibility to ensure that at least one of the child’s extra-curricular activities would not become the subject of dispute.
To go further, however, and grant the mother sole parental responsibility for other extra-curricular activities would deny the father a role in developing interests and activities with the child that he can fully support.
This shows how parental responsibility can be allocated in a variety of ways, and that a serious lack of ability to reach an agreement can also be a reason for granting sole parental responsibility.
However, the appellate judge found the main issue to be in the use of the term “joint parental responsibility.”
This does not exist in legislation.
The Family Law Act 1975 uses the terms “parental responsibility” and “equal shared parental responsibility.”
In not following legislation the trial judge created uncertainty about the outcome.
The appellate judge also found that the primary judge did not adequately consider the child spending equal time or substantial and significant time with each parent, nor did they give proper consideration to determining what was in the child’s best interests.
The appeal was allowed, and a rehearing was ordered.