Who has parental responsibility?
Parents have parental responsibility for their child until they are 18 years old unless the court makes an order removing it. This responsibility is not affected by relationship changes. Parents still have parental responsibility after they separate and if they re-marry.
It is possible for the court to make an order giving parental responsibility for a child to person who is not their parent. This is complex and you should get legal advice about your situation.
Changes to the law
Currently, there is a legal presumption in family law that it is in the best interests of a child for their parents to share parental responsibility. A legal presumption means the law assumes that this is best for a child in most cases. The legal presumption does not apply in cases where there has been family violence or abuse or if it would not be in the best interests of the child.
From 6 May 2024, in cases where parents were married, this legal presumption will no longer apply. It will continue to apply in cases where parents were in a de facto relationship. However, it is expected that in the future, the changes will also apply in cases where parents were in a de facto relationship.
The court will continue to be able to make orders about parental responsibility for a child in cases where parents were married or in a de facto relationship.
Who can make decisions if there are no court orders?
If there are no court orders about parental responsibility for a child, parents don’t legally have to make joint decisions about major long-term issues for their child. However, parents are encouraged to talk to each other and make joint decisions about their child, if it is safe to do so.
Who can made decisions if there are court orders?
It will depend on what the court orders say. Parents must follow what the orders say.
Two common orders made about parental responsibility are:
- equal shared parental responsibility: where parents must make decisions about major long-term issues together, and
- sole parental responsibility: where one parent can make decisions about long-term issues (the parent must still make sure they follow the other orders about their child which are in place).
What is a major long-term issue?
Some examples of major term issues include:
- your child’s education,
- your child’s religious and cultural upbringing,
- your child’s health,
- your child’s name,
- changes to your child’s living arrangement which make it more difficult for the child to spend time with both parents and other important people in their life.
Day to day issues such as what your child will eat and the clothes they will wear are usually not major long-term issues and parents do not need to make joint decisions about these issues.
Is equal shared parental responsibility and shared care the same thing?
No, equal shared parental responsibility and shared care are not the same thing. Equal shared parental responsibility is about sharing making major long-term decisions about a child. Shared care is a common term used in family law to describe a child spending equal time with each of their parents.
Every child and family is different, so there are no standard arrangements about how much time they should spend with each parent after separation. Arrangements should be realistic, practical and be focused on the best interests of the child.
Reviewed: 29 January 2024