Parental Responsibility isn’t who the children live with, or when they spend time with the other parent, but the ability to make the “big” decisions for your child.
To speak in very general terms, in Australia the Family Law Act 1975, deals with parenting under two core concepts.
The first is where the child lives and when they spend time with the other parent. This you will see in Family Law Orders most often referred to in this language, for example:
- The child, Jane Smith born 1 June 2022, live with the Father.
- The child spend time and communicate with the Mother as follows …
Often people refer to these arrangements as “custody” of a child*, within Family Law we tend to refer to them as “parenting arrangements”.
The second concept is the more tenuous concept of “parental responsibility”.
In the Act itself, Parental Responsibility is defined as “All the duties, powers, responsibilities, and authority which, by law, parents have in relation to children.”
I like to explain it to my own clients as the “decision making power” for a child. This is not so much in terms of day-to-day decisions for a child which, practically, are made by the parents whose care the child is in on any given day. But the “big” decisions – such as decisions in relation to:
- where the child goes to school;
- the health of the child (such as medical procedures);
- the religion or faith of the child;
- the relocation of the child;
- the child’s name or changing the child’s name;
- travel documents for the child.
The reason why I describe the concept of Parental Responsibility as tenuous is that the parenting arrangements for a child don’t necessarily impact parental responsibility. A child can live with one parent and spend little time with the other parent, and both parents can still have “equal shared parental responsibility”.
It is really common for parents to be confused as to why they don’t have equal time with their child when they have “equal shared parental responsibility”.
The law’s default position (known as a presumption) is that parents will have equal shared parental responsibility of their children unless there is a good reason why this should not occur.
The Court can also grant parental responsibility to other parties, such as grandparents or stepparents, if needed.
It is relatively uncommon for one parent to have “sole parental responsibility” for a child.
Sole parental responsibility means that parent doesn’t need to consult with the other parent in relation to making decisions about their child. This may happen where the other parent has abused the child or does not have the capacity to make decisions in relation to their child.
Sometimes, when the parents cannot agree on particular issues for a child, the Court may grant sole parental responsibility in relation to particular decisions. For example, that the parents have equal shared parental responsibility, but that the Mother have sole parental responsibility in relation to the education of the child.
*We no longer use the term custody in Australian Family Law. We’ll discuss why in a future blog post.
