Parental responsibility

Each of the parents of a child who has not turned 18 years has “parental responsibility” for the child: s 61C, Family Law Act 1975 (Cth). Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”: s 61B, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted.

There is a presumption, when a parenting order is being made in relation to a child, that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility: s 61DA, Family Law Act 1975 (Cth). This presumption does not apply in certain circumstances and can be rebutted. It is also possible for one parent to have sole parental responsibility or for a person other than a parent of the child to have parental responsibility (sole or shared) for that child.

When parental responsibility is shared between two or more persons, there is a legal requirement for those persons to jointly make decisions that are major long term decisions for that child. This means that each person has to consult with the other and make a genuine effort to come to a joint decision about that issue. It does not actually require agreement for a decision to be made jointly, although depending what the issue is about logistically it may not be possible to implement a decision without the written consent of both or all persons with parental responsibility (eg, medical decisions, changing a child’s name or to enrol in a private school). In these cases a court order may be required where the parties do not agree. There is no need for consultation on decisions which are not major long term decisions, ie the day to day decisions about what a child eats, discipline, sleeping times etc. See ss 65DAC and 65DAE FLA.

Practice Tip: For a case which looks at how to approach the task of drafting orders for parental responsibility see Pavli v Beffa [2013] FamCA 144. For a case where the court determined that a parent was to have no parental responsibility see Modlin & Anstead [2013] FamCA 955.

Major long term issues is defined in s 4 of the Family Law Act to mean issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

• • the child's education (both current and future);
• • the child's religious and cultural upbringing;
• • the child's health;
• • the child's name; and
• • changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

See B and B and Goode v Goode (2006) 36 Fam LR 422.

See Parental responsibility.