How parents approach making long-term major decisions about their children
Parental responsibility refers to the concept that parents are responsible for making major long-term decisions about the care, welfare and development of their children. Prior to the Family Law Amendment Act 2023, a presumption existed that parents had equal shared parental responsibility. Many presume this is still the case.
However, the Family Law Amendment Act 2023 removed the presumption of equal shared parental responsibility.
One intended effect of this change was to make it easier for the Court to decide how to confer parental responsibility by focusing on the best interests of the child.
So, what does this mean in practice?
Outside of Court
The current legal position is that each of the parents of a child who is not 18 have parental responsibility for the child unless there is a parenting order that provides otherwise.
If it is safe to do so, parents are encouraged:
(a) to consult each other about major long - term issues in relation to the child; and
(b) in doing so, to have regard to the best interests of the child as the paramount consideration.
Inside of Court
If parents cannot agree on how to make major long-term decisions for a child, the Court now decides each parenting case on its own facts to determine whether to allocate the parents joint decision-making responsibility or one of the parents’ sole decision-making responsibility.
Under section 61DAA of the Family Law Act 1975 (Cth), parents who have joint decision-making responsibility are required to:
consult the other parent; and
make a genuine effort to come to a joint decision.
Subsection (2) confirms that section 61DAA “does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly”.
Parents only need to consult on major long-term decisions, not day-to-day decisions that might arise such as whether to take a child for a haircut, or what they are to wear or eat.
The term “major long-term decisions” relate issues about a child’s:
1. education;
2. religious and cultural upbringing;
3. health;
4. name; and
5. changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Parenting orders may provide for parents to make joint decisions about some major-long term issues but not others. For example, parents might be able to agree on the child’s education, and name but not on about their health. The Court may then make an order for joint decision-making about education and health but for one parent to have sole decision-making responsibility about the child’s health.
When might the Court make an order for Sole Decision-Making Responsibility?
An order for sole decision-making responsibility might be made where one parent exposes the child to an unacceptable level of risk or where they have not been involved in making decisions in the past.
Sole decision-making responsibility means that one parent has the legal responsibility for making major long-term decisions without requiring the other parents’ consent or agreement.
If you are having difficulties making major long-term decisions for your child after separation, R + M Law can provide you with assistance. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.