Understanding Parental Responsibility – Soles vs Equal with Case Examples

By September 21, 2022 No Comments

When parents separate, parenting arrangements are usually sought by the parties. At Joss Legal, clients often ask what parental responsibility means.

What is parental responsibility?

Parental responsibility is outlined in Section 61A of the Family Law Act 1975 (Cth)[1] (‘the Act’) as the legal term meaning all of the duties, powers, responsibilities and authority that both parents have in relation to their child.[2] The Act does not specify what duties or powers that parents have in relation to their children however there is a general idea of what parents should do.

It is important to note that parental responsibility not the same as equal parenting time or shared care. Shared care is a term that is often used to describe the legal concept of equal time spent with the child. There is no legal presumption about the amount of time children should spend with each parent.

The law presumes that it is in the children’s best interests for their parents to share parental responsibility.[3] The presumption does not apply if the child has been exposed to family violence or there has been child abuse within the child’s life.


Who has parental responsibility?

Parents have parental responsibility for their children until they are 18 years old.[4] This responsibility is not affected even if the parent’s relationship changes.[5] Each parent has parental responsibility for their child, unless a court makes a parenting order or other decision transferring parental responsibility, or some part of it, to another person.


What is Parental Responsibility

Parental Responsibility refers to has the legal power to make a decision for a child. Here we will discuss this in the context of the breakdown of a relationship.


What are the types of Parental Responsibility?

The two most common parental responsibility orders are equal shared parental responsibility and sole parental responsibility.


Sole Parental Responsibility

Sole Parental responsibility is where one parent can make decisions about major long-term issues without having to talk to or agree with the other parent. There are some situations where it is in the best interest of the child to have one parent make all the decisions. Further, the Family Court can order that sole parental responsibility be granted for a specific issue or a set of issues.


Sole Parental Responsibility Case Example

Finton & Kimble [2017] FCWA 106

The parties entered into a relationship in early 2009 and married in 2011. They separated on 23 December 2013. There were 2 children of the marriage aged 14 months and 3 months at the time of separation. The children were seeing the father for 2 hours of supervised contact on Thursdays post separation.

This 2017 hearing in WA determined the parenting arrangements for the children, where there were allegations of family violence. The relationship between Ms Kimble and Mr Finton was describe as one of ‘significant conflict and domestic upheaval’

Ms Kimble sought parenting orders that would grant her sole parental responsibility for all major long-term issues in respect of the children including, education, religious and cultural upbringing and health.

Mr Finton sought to have equal shared parental responsibility of the two children.

The main issue affecting the judgments was the husband’s hostile behaviour and threatening nature towards a wide range of people and institutions. The husband would send scathing and criticising communications to the wife and to the Independent Children’s Lawyer assigned to the matter. This included speaking ill of the children’s mother and threatening to hurt her.

Sole parental responsibility was granted in favour of the wife.  It was ordered in the best interest of the children to live with the wife and spend no time with the husband due to his inability to his treat his family and others around him with respect and care.

The wife was not criticized for her parenting as she attended to the children well.


Equal Shared Parental Responsibility

Equal shared parental responsibility means both parents share major long term decisions on issues such as:

  • Medical matters;
  • Religious matters;
  • Cultural matters;
  • Education;
  • Living arrangements – especially ones that make it more difficult for the child to spend time with the other parent; and
  • The child’s name.

Both parents are required to talk about the issues together and make a genuine effort to agree.

Under the legislation, there is a presumption of equal shared parental responsibility. Therefore it is presumed that parents will have equal decision making power, unless there is a reason for the Court to consider this not appropriate and make an Order otherwise.


Equal Shared Parental Responsibility – Case Example

Biss [2009] FamCA 1234

This is a case that explored whether equal shared parental responsibility should apply, notwithstanding a history of violence perpetrated by the Father towards the Mother. In this case, Justice O’Reilly found that the violence had stopped following the breakdown of the parents relationship and further found that the children should spend equal time with both parents. He also made an Order for equal shared parental responsibility, meaning that the parents would have to agree to long term decisions for the children.

Day to day issues for the child are not major long-term issues. These include things such as what the child eats and what they wear. The parent who is caring for the child at the time can make these decisions.

If you want more information about parental responsibility please feel free to get in contact with us here at Joss Legal

[1] Family Law Act 1975 (Cth) s 61A.

[2] Family Law Act 1975 (Cth) s 61B.

[3] Family Law Act 1975 (Cth) s 61DA(1).

[4] Family Law Act 1975 (Cth) s 61C(1).

[5] Family Law Act 1975 (Cth) s 61C(2).