Parental Responsibility

Parental Responsibility

Parental responsibility means the different responsibilities and duties parents legally have for the care, development and welfare of their children.

It is defined in the Family Law Act 1975 as:

“All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Parental responsibility does not automatically change when parents separate or divorce.

Unless the court orders against it, each parent remains responsible for their child until the child reaches the age of 18

The court considers six main points as “major long-term issues” about which parents with parental responsibility are required to make decisions.

One of the most important parts of parental responsibility is making decisions about the child’s life and future.

Unless it is not in the child’s best interests, the court works with the presumption of equal shared parental responsibility.

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Types of Parental Responsibility

Here’s a breakdown of parental responsibility in Australia, focusing on the key types and what they entail:

1. Equal Shared Parental Responsibility (ESPR)

Australian courts assume ESPR is best for the child unless there’s strong evidence that it’s not in their best interests.

Parents are also expected to consult each other and make joint decisions about major long-term issues affecting the child, including:

  • The child’s current and future education
  • The child’s health, especially medical procedures
  • The child’s religious and cultural upbringing
  • Changing the child’s name
  • Authorising a travel document for the child
  • Changing the child’s living arrangements in a way that makes it significantly harder for them to spend time with a parent
  • Determining the child’s religious and cultural upbringing

2. Sole Parental Responsibility

This is generally reserved for cases where ESPR is deemed potentially harmful to the child. Reasons may include:

  • History of domestic violence or abuse
  • One parent’s inability to make decisions in the child’s best interests
  • Risk of the child being removed from Australia without consent

The parent with sole parental responsibility can make all major decisions about the child’s life without consulting with the other parent.

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Day-to-Day vs. Long-Term Decisions

  • Day-to-Day Care: Even with ESPR, parents can make unilateral decisions about a child’s day-to-day care (what to eat, clothes, activities) without consulting the other parent.
  • Long-term decisions have a more significant impact on the child’s future, and that primarily falls under the scope of ESPR.

Can the Family Court Make Orders About Parental Responsibility?

Yes, the Family Court in Australia can make orders about parental responsibility. When parents are unable to reach an agreement about the care and welfare of their children, either parent can apply to the court for orders.

The Family Court can make decisions regarding who will have parental responsibility and what that responsibility will entail.

Types of Orders Regarding Parental Responsibility

  1. Orders for Equal Shared Parental Responsibility: The court usually starts with a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.

    This means that parents would need to consult with each other and make joint decisions about major long-term issues affecting their children.

  2. Orders for Sole Parental Responsibility: In certain cases, the court may determine that it is in the children’s best interests for one parent to have sole parental responsibility.

    This may happen in cases involving family violence, abuse, neglect, or significant parental conflict harming children.

  3. Specific Issues Orders: The court can also make orders about specific aspects of parental responsibility, such as where the child will go to school, major health decisions, religious upbringing, and other significant issues affecting the child’s welfare.

  4. Live With, Spend Time With, and Communicate With Orders: While not directly labelled as “parental responsibility,” these orders dictate with whom the child will live, the time the child will spend with each parent, and how they will communicate.

    These decisions can have implications for how parental responsibility is exercised.


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    Shared Parental Responsibility vs Shared Care

    In Australian family law, “shared parental responsibility” and “shared care” are two distinct concepts that often get confused. It’s important to understand the differences between them:

    Shared Parental Responsibility

    • Shared parental responsibility refers to the parents’ duties, powers, obligations, and authority concerning major long-term decisions in their children’s lives.

    • When parents have shared parental responsibility, they must consult each other and make joint decisions about important issues such as the children’s education, health, and religious and cultural upbringing.

    • The presumption of shared parental responsibility applies unless there is evidence that it would not be in the child’s best interests, such as in cases of abuse or high conflict.

    • It is a legal concept focusing on the parents’ decision-making roles and does not dictate how much time a child spends with each parent.

    Shared Care:

    • Shared care, however, relates to the physical arrangement of how much time the child spends with each parent. It involves the child’s day-to-day care and can vary greatly in terms of the actual division of time between the parents.

    • Shared care might occur in various forms, such as a 50/50 split, where the child spends an equal amount of time with each parent, or any other division that allows significant time with both parents, which could be less than equal time but still considerable.

    • The determination of shared care arrangements is based on what is in the child’s best interests, considering factors like the child’s routine, the parents’ locations, their ability to cooperate, and the child’s age and needs.

    • Shared care is a practical arrangement and does not automatically imply that parents have shared parental responsibility, although they often go hand in hand.


    Changes to Parental Responsibility

    Changes to parental responsibility can occur in various circumstances, especially when there are significant changes in the living situation, the capacity of parents to care for their children, or when it is necessary to protect the child’s best interests.

    Here’s how changes to parental responsibility might unfold and be addressed:

    1. Mutual Agreement: Parents can agree to change the arrangements regarding parental responsibility.

      If they reach a new agreement, they can choose to make it informal or formalise it through a parenting plan or by applying to the court for consent orders.

      While a parenting plan is not legally enforceable, consent orders provide a legally binding agreement outlining each parent’s responsibilities and arrangements.

    2. Court Modification: If one parent seeks to change the existing orders and the other parent disagrees, the parent seeking the change must apply to the court to have the orders varied or replaced.

      The court will only modify existing orders if it is convinced that circumstances have changed significantly since the orders were made and that changing the order would be in the best interests of the child.

    3. Significant Change in Circumstances: The court needs to establish a significant change in circumstances to consider altering parental responsibility orders.

      This could include relocation, a parent’s incapacity to care for the child, evidence of harm or risk to the child, or significant changes in the child’s needs

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