It is quite common for a parent to state that they want to pursue “full custody” of their child. In fact, Australia does not have the concept of “custody” as part of the family law. Rather, a parent who is seeking to have the full care of a child, without sharing with the other parent, is seeking sole “parental responsibility”. In 2024, the rules around parental responsibility changed. This change may make applying for full custody of a child easier.
Parental Responsibility
Parental responsibility is a term that refers to the powers and duties that usually accompany parenthood. Specifically, parents usually have the responsibility to make all decisions that have a long-term impact on their children, including their education, religion, and health care.
It is important to note that parental responsibility is not the same as parenting time. A parent might have time with their child on a regular basis, even if they do not have parental responsibility over them. For instance, in Ambler & Ambler [2019], the court ordered that a mother have regular parenting time with her child but exercise no parental responsibility. The court made this decision because, while it was recognised that the child would benefit from the contact time, the mother was not able to act cooperatively with the father in the child’s best interests.
How Does One Parent Obtain Sole Responsibility?
In most circumstances, both parents automatically exercise parental responsibility for their children from birth. However, in some instances, the parents might agree that one parent should have sole parental authority (or “full custody”) over a child. It is important to note that this private agreement does not terminate the legal rights of the parent who agrees to give up parental responsibility, even if this agreement has been formalised into a written document or even approved by the court in the form of consent orders. An absentee parent can change their mind and apply for a variation of the consent order at any point in the future.
In some cases, one parent will seek the authority of the court to obtain sole parental responsibility for a child. To obtain this outcome, they will need to apply to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) for a Parenting Order. Parenting orders can address the living situation of the child, the time the child spends with each parent and other people (such as grandparents), communication with the non-resident parent, the welfare, care and development of the child, and crucially, the allocation of parental responsibility.
The court can make an order giving parental responsibility to one parent when this is in the best interests of the child. The court can also award parental responsibility to other individuals, such as a grandparent if that is the outcome that is in the child’s best interests.
There is also provision for a parent (or other caretaker) to be awarded sole parental responsibility for a particular aspect of the child’s life. For instance, in Trayden & Trayden [2021], though the parents shared parental responsibility for all other matters, the Court awarded sole parental responsibility to the mother for healthcare decisions. The father’s previous interactions with medical professionals had led some practitioners to decline to treat the child, and the Court therefore considered it was in the child’s interests for the mother to assume sole responsibility for these matters in the future.
Presumption of Equal and Shared Parental Responsibility
Parenting Orders are made under the Family Law Act 1975, which was recently amended by the Family Law Amendment Act 2023. This legislative amendment replaced a fundamental presumption that both parents should have “equal” and “shared” parental responsibility for their child. The Court used to start from the assumption that both parents should receive joint “custody”. When two people share parental responsibility, they must consult with each other and reach an agreement over serious decisions that significantly impact the child. Under this legislation, it was up to the parent seeking sole responsibility to prove that shared responsibility was not suitable, usually because of family violence. Critics alleged that this was often a difficult case to prove, leaving children in the control of unsafe caregivers. This perceived failure to prioritise the safety and well-being of the child prompted a change to the law to remove this presumption.
From 6 May 2024, the court’s overriding priority when it comes to parenting orders is the best interests of the child. Although the presumption of equal shared responsibility has been removed, the court is likely to continue to make orders specifying equal and shared responsibility, because there is evidence that in most cases this arrangement is in the best interest of a child.
Taylor Rose Lawyers can provide legal advice or representation on any family law matter, including applying for full custody of a child. Please use this contact form or call 1800 491 469 for any assistance.
