It seems obvious to most people when dealing with parenting matters – the best interests of the child trumps everything else .
However, most parents are surprised to learn that they do not have rights under the Family Law Act 1975, only responsibilities.
The Act sets out the rights of children in circumstances of family breakdown including:
- A right to safety and wellbeing;
- A right to know and be cared for by both parents;
- A right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (including grandparents and other important people in the children’s life); and
- A right to enjoy their culture.
Unless there are issues of violence or abuse involved, the Court must start by presuming that it is in the best interests of the child for parents to make joint decisions about major long-term issues like schooling, religion, health, or the child’s name.
This is called Equal Shared Parental Responsibility. Parents with equal shared parental responsibility are expected to communicate about the decisions which need to be made and come to an agreed solution.
But what happens in circumstances where parents cannot come to joint decisions? Can a parent get sole parental responsibility?
What Does Sole Parental Responsibility Mean?
In some circumstances a Court makes an order for sole parental responsibility. This means that the parent who is awarded sole parental responsibility is the sole decision-maker for the child.
The Court may also order that one parent has sole parental responsibility for certain matters, for example, education or health. This means the other parent has no ability to make decisions for that type of decision.
The Other Parent Won’t Talk to Me or Help Me Make Parenting Decisions. Do I have Sole parental Responsibility?
Unless there is a Court Order granting you sole parental responsibility, the answer is no. The Act provides that parents have parental responsibility.
In circumstances where the Court is asked to make parenting orders then it will apply a presumption that it is in the best interests of the child for the parents to share that responsibility equally.
Of course, this presumption does not apply if there are reasonable grounds to believe that a parent (or a person who lives with the parent) has abused the child or engaged in family violence.
But even in those circumstances both parents have parental responsibility.
How Do I Get Sole Parental Responsibility?
Firstly, you should be aware that the Court is generally reluctant to make orders for sole responsibility, either overall or for certain limited matters.
Usually, it is only ordered in exceptional circumstances.
For example, in the case of Small & Small  FamCA 433, there were exceptional circumstances which led to one parent receiving sole parental responsibility.
In that case:
- The mother made a series of very serious allegations of domestic violence and sexual abuse against the father, which were strongly denied by the father. The mother alleged that the father had engaged in domestic violence including sexual violence against both her and the children, though the view of the Court was that some of this was unsubstantiated in evidence. Following the separation, the father had undertaken courses to “moderate his conduct and gain insight into the damaging consequences of family violence”.
- There was a significant period of time where the father had not spent any time with the children. At the time of the decision, “for more than five years he has had nothing to do with the children either physically or by communication”. The Court considered that this delay could be attributable to the mother’s “resolve to keep the children from the father” and also the time taken for the various investigations and assessments to determine the needs of the children.
- There were two children of the relationship, both of which had special needs. Both children had been diagnosed with extreme anxiety, speech difficulties and symptoms consistent with Autism Spectrum disorder (or behavioral aspects of Autism).
- Following an intervention by the Minister for the Department of Education and Child Development towards the end of the proceedings, the children were enrolled into a mainstream school. Prior to that the children were enrolled in online learning. They had low attendance with poor grades and general academic performance.
In Small, the Court had to take into account very difficult considerations, including:
- Is there an unacceptable risk to the children from the father?
- Do the benefits of a meaningful relationship with one party outweigh “the potential harm caused to the children by re-establishing a relationship following a prolonged absence?”
- Given the children’s special needs and vulnerability, will they be able to “realistically cope with seeing their father in a supervised environment over an extended period of time”.
- Especially given the children’s vulnerability, what orders can be made that are least likely to lead to further litigation.
In that decision, the Court held that:
- The more serious claims of the mother in regards to the domestic violence were unsubstantiated. However, it was clear that the home was “an unhappy and volatile environment,” with both the father and the mother having acted upon anger towards each other.
- Especially given the children’s’ vulnerability, the children would need therapeutic intervention in order to be able to be reintroduced to the father, but this was practically unlikely to be facilitated by the mother.
- Neither the mother nor the father “have a proven ability to manage the children or parent them responsibly and in a safe and developmentally focused environment.”
- The transition of the children into a mainstream school was an important transition. The Court needed to avoid circumstances where the children were returned to a situation that would be “socially isolated and developmentally stunted”.
In summary, the Court made the following key orders:
- the mother have sole parental responsibility for the children;
- the children live with the mother;
- the father be at liberty to send cards and gifts to the children no more than once a month with the mother to read those cards and provide the gifts to the children;
- the father be provided with reports on the children’s schooling, be entitled to speak with the school and see medical and educational records;
- the mother provide the father with at least 3 photos of the children at least every 3 months; and
- the parties be restrained from denigrating each other in the presence of the children, or allowing another person to do so.
If you think that your situation might be one where it is appropriate or desirable to seek sole parental responsibility, make a time to speak to one of our family lawyers.