Parental Responsibility, Decision-Making, and the Rights of a Child

Parenting is rewarding but rarely easy. It can be even more challenging when you and your child’s other parent are not in a relationship.

Disputes regarding living arrangements and spending time with your children are common after separation. There is a common misconception that as a parent you have certain rights by law to their children, however, the family law system, governed by the Family Law Act 1975, affords “rights” to the children and responsibilities to the parents.

What does this mean for you as a parent? In this article, we discuss the concept of “parental responsibility” and “decision making responsibility” in Australian family law. We’ll also discuss the rights of the child and how this impacts your responsibility as a parent.

What are the rights of a child?

Children have numerous rights in Australia with the aim being to ensure the child’s wellbeing – their physical, emotional and psychological wellbeing – is protected.

When decisions are made about a child following parents separating, these decisions should be made with the best interests of the child in mind. This is the “paramount consideration”.

Section 60CC of the Family Law Act[2] provides a list of considerations in determining the child’s best interests including:

1.      Promoting the safety of the child and the child’s carers;

2.      Views expressed by the child;

3.      Developmental, psychological, emotional and cultural needs of the child;

4.      Capacity of the carers or parents to provide for or meet the child’s needs;

5.      Benefit of the child in having a relationship with the other parent or other people who are significant to the child; and

6.      The child’s cultural background.

The legislation focuses on the child’s safety first.

Do parents have rights to their child?

The Family Law Act 1975 was enacted to govern the rights of children and the responsibilities of parents after separation.

When parents separate, they are often concerned about their rights, usually in relation to being able to see and spend time with their child. While the family law system in Australia encourages relationships between children and both parents, it must be safe for the child.

Ultimately, children have rights and parents have ‘responsibilities.’

·       “Parental responsibility” is the duties, powers, responsibilities and authority provided by law that parents have in relation to their child or children. By default and subject to court orders, each of the parents of a child has parental responsibility for that child. Only parents have parental responsibility.

·       “Decision-making responsibility” is the decisions to be made relating to a child’s long-term welfare and it is expected that parties consult each other on these decisions, if it is safe to do so. These major long-term decisions include the child’s health, education, religion, name and living arrangements.  Decision-making responsibility can be assigned by way of Court Order to one or both parents, or to another person of significance to the child.

Sole vs Joint decision-making responsibility

Each parent has parental responsibility for their child, unless the Court makes an order affecting their parental responsibility. Orders the Court may make include:

·       For one parent to have sole decision-making responsibility in respect of one or more aspects, or all aspects of the child’s care, welfare and development;

·       For both parents to have joint decision-making responsibility in respect of some or all aspects of the child’s care, welfare and development.

In the absence of any of the above Orders, there is an expectation that parents consult each other in respect of major long-term decisions, providing it is safe to do so. This means that even though you and your child’s other parent may no longer be in a relationship, you cannot make a major long-term decision for your child without the agreement of the other parent. If you’re unable to make a decision, you may be able to apply to Court to have the Court decide for you.

Who can have decision-making responsibility?

Families are created in different ways, so you may be wondering who can have decision-making responsibility.

Other important persons in a child’s life, may be their grandparents or other family members who helped to raise a child, and they may be able to be a designated decision-maker in some cases. This is not automatic however and requires a Court Order.  

Another important fact to note is that while step-parents may take on the role and responsibilities of raising their partner’s child, they do not have parental responsibility and are not automatically granted decision-making responsibility, even when they marry the child’s parent. A step-parent would be required to make an application to the Court for decision-making responsibility.

Does the Court have a preference for joint decision-making responsibility over sole decision-making responsibility?

There is no longer a presumption of joint or equal shared parental responsibility which mandated parents to consult each other before a major decision relating to the child was made. However, there is an expectation to consult each other, provided it is safe to do so.

The child’s safety and welfare is of great importance and should be the key factor in deciding whether it’s appropriate for both parents or only one parent to have decision-making responsibility for a child.

If you are concerned about the role of your child’s other parent in your child’s life and are considering applying for sole decision-making responsibility, it is highly recommended that you seek legal advice. Designating decision-making to one parent can have significant long-term consequences for all parties  and the child, and many factors must  be considered. You can talk to our experienced family lawyers to learn more about parental responsibility.

Is there a right to equal time to your child?

A common misconception has been that a parent has a right to equal time to their child.

Time arrangements are either determined between the parents or in instances where Court intervention is required, the Court will decide the arrangements based on the child’s best interests. These considerations are listed out above.

Preparing for Parenting arrangements, plans and orders can also be discussed and strategised with an experienced family lawyer.

Resolving parenting matters in Australia

If you’re experiencing disputes related to parenting matters and you need help, here at Dorter Family Lawyers and Mediators we can help you. Our family law team is highly experienced in a vast range of family law matters, including parenting and children’s matters. Discuss your situation with our team today. You can get in touch with us by calling 02 9929 8840 or sending an enquiry here.