Sole Parental Responsibility

Parental responsibility is a fundamental concept in family law, defining the duties, powers, and responsibilities a parent holds in relation to their child. In Australia, the Family Law Act 1975 governs matters related to parenting arrangements, including the allocation of parental responsibility. With recent changes to this legislation, there is no longer an assumption that parental responsibility will be shared equally between parents. Instead, when asked, the Federal Circuit and Family Court of Australia will determine what distribution of parental responsibility is in the best interests of the child. This can result in sole parental responsibility being allocated to one parent when that is best for the child. This article explores the legal framework, criteria, and implications of sole parental responsibility in Australia.

Understanding Parental Responsibility

Parental responsibility refers to all the duties, powers, responsibilities, and authority parents have regarding their children. It encompasses the capacity to make decisions about major aspects of a child’s life, including issues such as:

• education
• health care
• travel
• religious upbringing
• living arrangements

Family law emphasises that parental responsibility is not automatically affected by the nature of the relationship between the child’s parents. This means that whether parents are married, separated, divorced, or have never lived together, they typically share these responsibilities on an ‘equal’ and ‘shared’ basis unless a court orders otherwise. When parental responsibility is equal and shared, the parties must consult with one another and reach an agreement about major issues concerning a child. By contrast, when only one person has parental responsibility, they have no obligation to consult with others before making decisions about a child.

Historically, the court has been reluctant to deviate from the principle of equal and shared parental responsibility, and tended to only do so when there was clear evidence that one parent posed a risk to the child. The recent Family Law Amendment Act 2023 significantly changed the court’s approach to this matter. This change reflects a growing recognition that shared and equal parental responsibility is not always suitable for every family. Under the Amendment, there is no longer a rebuttable presumption that parents should have equal shared responsibility for a child, but instead a requirement for the court to consider each family’s unique circumstances. Following this analysis, the court can make orders for equal shared responsibility or sole parental responsibility, or any variation on this spectrum. 

Best interests of the child

The court will order parental responsibility to be shared in the manner it considers best for the child. How the court is to determine the best interests of the child is set out in the Family Law Act 1975, including a focus on:

• the arrangements that best promote the child’s safety
• any history of abuse, neglect or family violence (including family violence orders)
• the emotional, psychological, cultural and developmental needs of the child
• the capacity of each parent or proposed caregiver to meet these needs, including their parenting skills, emotional stability and ability to cooperate in decision-making
• the perceived benefit of the child having a relationship with their parents and any other significant person
• the views of the child, especially if they are old enough or mature enough to express their preferences
• for Aboriginal and Torres Strait Islander children, the right for them to embrace their own culture, and
• any other factor relevant to the child’s specific circumstances.

The range of these factors reflect the court’s interest in making a holistic assessment of the child’s welfare, over default assumptions about shared parenting.

Sole parental responsibility

Parents seeking sole parental responsibility must demonstrate that such an arrangement aligns with the child’s best interests. This is easier now given the removal of the presumption of equal shared responsibility, but it is nevertheless a high burden for a parent to satisfy the court that the other parent should not exercise parental responsibility.

It is important to emphasise that sole parental responsibility does not necessarily mean the child will live exclusively with that parent, only that the decision-making power rests with them. The court will usually make orders that the child will continue to have contact with both parents, unless this would pose an unacceptable risk to the child. It is equally important to emphasise that sole parental responsibility also does not absolve the other parent of their financial obligation to the child. The non-custodial parent is usually required to pay child support, in an amount determined by Services Australia.

With the recent amendment to the Family Law Act, it is easier for a parent to demonstrate that they ought to exercise sole parental responsibility for a child. However, in order to obtain such an order, a parent must still mount a persuasive case that it would be in the best interests of the child. For any advice on how to apply for sole parental responsibility or any other family law matter, please contact Go To Court Lawyers on 1300 636 846.