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:
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?
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.
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.
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:
In Small, the Court had to take into account very difficult considerations, including:
In that decision, the Court held that:
In summary, the Court made the following key orders:
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.