What is Sole Parental Responsibility?

One of the options relating to parental responsibility post-divorce is getting a sole parental responsibility. Put simply, it means that the parent who has it does not have to consult with the other parent before making major decisions concerning the child. These decisions relate to the child’s education, health, travel etc. (see below for details.) However, some situations require that both parents agree on certain decisions – such as gender change therapy, that cannot commence before both parents agree on that.

Sole parental responsibility is not commonly ordered. In fact, the Court usually grants both parents equal and shared parental responsibility.

However, if one parent can successfully argue shared parental responsibility should not be presumed, he or she needs to show the Court evidence that it would be not in the best interests of the child if both parents are given equal shared parental responsibility. This means that the parent will have to provide reasonable grounds to believe that the other parent, or a person living with them, has engaged in family violence or subjected the child to abuse.

If this is the case, the court may consider making an order for sole parental responsibility under the Family Law Act.

What Is Parental Responsibility Anyway?

Parents legally have different duties and responsibilities for the care, welfare and development of their children. These duties and responsibilities are considered parental responsibility. The Family Law Act 1975 defines parental responsibility as:

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

Separation or divorce of the parents does not result in an automatic change of parental responsibility, even if the child only lives with one parent. As long as the child is legally minor – until they reach the age of 18 – each parent remains responsible for the child, unless the court orders against it.

Six main points are considered as “major long-term issues” by the court about which parents with parental responsibility are required to make decisions. These are the following:

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

Making decisions that concern the life and future of the child is seen as one of the most important parts of parental responsibility.

Equal Shared Parental Responsibility vs Sole Parental Responsibility

The court presumes that equal shared parental responsibility is in the best interest of the child. That means that both parents have an equal say on the major long-term issues that concern their child, and when making decisions on these issues, the parents must consult each other to reach an agreement.

Sometimes, however, it can be determined that it is not in the best interests of the child to have an equal shared parental responsibility. In such instances, one parent may be granted sole parental responsibility in accordance with the Family Law Act. If this happens, the parent who has sole parental responsibility will not need to consult with the other parent when it comes to various decisions about the child’s life.

Sole parental responsibility can be granted either entirely, for all major long-term issues and other decisions, or for a specific issue or set of issues.

Worth noting: sole parental responsibility is not the same as custody or visitation and communication rights. If parents share responsibility for their child, it does not also mean that they have equal custody – and vice versa. And the other way round: if one parent is granted sole parental responsibility, it does not mean that the other parent does not see the child. It just means that the other parent has no say in the major decisions concerning the child.

Sole parental responsibility is not commonly granted, and the court usually refrains from doing so, as it is considered that it is in the best interest of a child to have a relationship with both parents. However, if there is violence included, or abuse, or serious conflicts between the parents, the court may grant sole parental responsibility under the Family Law Act.

What the court considers is the following:

  • The benefit of the child of having a meaningful relationship with both parents
  • The need to protect the child from physical and psychological harm, and from being subjected or exposed to neglect, abuse and family violence.
  • As usual when it comes to various court decisions about children, the second consideration of protecting the child from harm is deemed more important and carries greater weight than the first one. This means that if one parent is causing the child harm, the court is likely to determine that it is of no benefit of the child to maintain a meaningful relationship with that parent. In that case – if a relationship with one of the parents is harmful to the child (if there is physical, emotional or sexual domestic abuse involved), the court will consider sole parental responsibility as a solution.

Parenting Orders

Parental responsibility is subject to parenting orders.

Parenting orders deal with a number of issues concerning the child’s care, welfare and development, such as who the child will live with, how the child will communicate with a parent, etc.

Parenting orders can be made in two ways. When the parents agree on the parenting arrangements for their child, a parenting order is a consent order that formalises their agreement. On the other hand, if they cannot agree, parenting orders will be made after a court hearing or trial.

If a parent is aiming at sole parental responsibility, they must offer proof that continuing a relationship with the other parent is of no benefit to the child. Sole responsibility can be sought for one issue affecting the child, such as their education, or for all aspects of the life and development of the child.

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