How Do You Get Parental Rights in Australia? Everything You Need to Know

Parental rights are a primary factor in raising children and ensuring their welfare. But how do you get parental rights in Australia? Managing the complexity of parental rights can be difficult. Whether you want sole parental responsibility or want to understand the fundamentals, this guide aims to help you. We’ll review everything from the fundamental concepts to the exact measures you must take to make the complex field of parental law accessible.

Your Parental Rights

As a parent, you have rights.

The legislation allows parents to raise their children based on their values and views. Religion, education, discipline, medical care, and where the child lives will not be affected unless there are compelling reasons or the child’s well-being is jeopardised – for example, if the child is abused or does not receive the fundamental education or medical treatment. Working parents have the right to child care and access to information about the payments and services they qualify for.

However, parental rights don’t involve the right to have custody or contact with your children, for example, following separation. The law obliges the child’s best interests to come first in cases where parental responsibilities may be amended.

Who Holds Parental Responsibility?

The only individuals who have “innate parental responsibility,” or the legal right to exercise parental responsibility without a court order, according to the Family Law Act, are birth parents, adoptive parents, people who become parents via artificial conception or surrogacy, and those who meet presumptions of parentage.

Although other individuals, such as stepparents, may be involved in a child’s care and support, only these parents, or those recognised as parents by the court, have final decision-making authority over a child.

Your obligations persist until your child reaches the age of 18 and do not terminate with divorce or separation. Even in the case of a separation, the government and the court motivate both parents to share in the exercise of parental responsibility for a child.

Parental Responsibility Australia

Under Australian law, parental rights or responsibilities are described as “all the responsibilities, powers, and authority which, by law, parents have concerning children” in section 61B of the Family Law Act 1975.  

In Australian family law, legal responsibility for a child is known as ‘parental responsibility‘. The person(s) with parental responsibility for a kid make all significant decisions about the child’s life. This includes decisions about the child’s schooling, major medical procedures, religious instruction, and name. The person responsible for a child does not always live with the child. 

Parental rights apply until the child’s best interests are prioritised or until the child reaches the legal age of adulthood, 18.

Child welfare regulations are different in each of Australia’s states and territories. 

Amendment to the Family Law Act.

Significant amendments to the Family Law Act 1975 will come into force in May 2024. Previously, there was a presumption that parental responsibility for a child was shared equally by both parents. This will no longer be the case from May 6, 2024. 

The changes abolish the presumption of equal shared parental responsibility. Instead, who has parental responsibility for a child will be determined by what is best for the child. In some circumstances, this will imply equal shared parental responsibility. In other circumstances, it will be the sole responsibility of the parents. 

Get Parental Responsibility for a Child.

Suppose you want to become a legal parent for a kid. In that case, you can apply to the court for parental rights and responsibilities. Depending on your cases, you may be eligible to apply for:

1. Ensuring Parental Responsibility
2. Parenting Orders from the Federal Circuit and Family Court
3. An order from the adoption court. 

For foster and kinship carers

For a child in your care, enduring parental responsibility will grant you permanent parental responsibility. It gives you full parental rights and obligations. It doesn’t change the child’s name or birth certificate, constituting their legal identity.

If it is best for the child, the child will continue to have contact with their biological parents and relatives. You will still receive a carer allowance for the child.

Apply for Enduring Parental Responsibility

If you’ve cared for a child for at least 12 months, you can discuss permanent care with your ACT case manager. Your case manager can initiate a permanency assessment if

If the child cannot be reunited with their birth family, demonstrate your ability to care for them. Child and Youth Protection Services will assist you in seeking an Enduring Parental Responsibility order from the ACT Children’s Court.

For Stepparents

If you are a stepparent, a Federal Circuit and Family Court parenting order will provide you with:

1. the right to make critical decisions about your stepchild’s life.
2. You are legally responsible for the care of your stepchild.

Parenting orders don’t:

1. update your stepchild’s birth certificate
2. Provide your stepchild with automatic inheritance rights.

Applying for Parenting Orders

Parenting orders can be applied in the Federal Circuit and Family Court. Contact a lawyer or the Federal Circuit and Family Court Deputy Registrar if you need assistance applying for a parenting order.

Change your stepchild’s last name.

Your stepchild may take your last name as their legal name, but this does not grant you legal parenting responsibilities. Both birth parents must agree to the name change. If your child is 14 or older, they must provide consent. Your stepchild’s biological parent may apply to change their child’s name at Access Canberra.

Adoption

Adoption is another option for obtaining a child’s legal parent.

Meaning of “Sole Parent”: Parental Responsibility

The definition of a sole parent in family law is as follows:

The primary carer of the child (either the mother or father) who cares for the child in the absence of the other parent is referred to as the sole parent.

In family law, “sole parent” refers to the parent with sole parental responsibility over the child. When considering this definition, it is vital to remember that the child lives with the sole parent permanently. Sole parental responsibility means a single parent makes all critical long-term decisions in the child’s life. 

Usually, both parents agree to make these significant decisions in their child’s life, where they have “equal shared parental responsibility.”  Therefore, after a separation or divorce, both parents make long-term decisions for the child’s life based on mutual consent. 

On the other hand, in situations involving a sole parent, that parent holds sole parental responsibility and is free to make decisions without the other parent’s consent. 

The following is a list of major long-term decisions in a child’s life:

1. The child’s present and future education 
2. Religious and cultural upbringing 
3. Name change 
4. Health (including medical procedures)
5. Authorising a child’s travel document (e.g. passport);
6. Making it difficult for the child to spend time with their parent, such as moving far away. 

How to Get Sole Parental Responsibility

Both parents must agree to get sole parental responsibility, or a court has to award it to you. This can occur by:

• By Agreement: If both parents agree that one parent should have sole parental responsibility, they can establish agreements in a parenting plan (which is not legally binding) or formalise this agreement with consent orders.
• By Court Order: If the parents cannot agree, one parent can apply for a court order to get sole parenting responsibility. This is often necessary because parents are typically unwilling to give up their ability to decide for their kids. 

In Australia, applying for sole parental responsibility of a child is a legal process that consists of several steps. Here’s an easy guide on how to apply for sole parental responsibility in Australia via court:

• Seek legal counsel: Consult a family lawyer with expertise in parenting issues. They can advise whether you have reasonable cause to seek sole parental responsibility.

• Family dispute resolution: Attending a family dispute resolution meeting is mandatory before applying to the court unless it is unsafe for you to try to work out a settlement with the other parent. If this fails, you can then file a court application.
• Apply: Apply to the Family Court for a parenting order. This application should explain why you want sole parental responsibility and provide evidence to support your claims, such as police reports, witness statements, or medical documents.
• Court hearing: Attend the court hearing, when a judge will review all evidence and decide in the kid’s best interests. The court will take into account the child’s relationship with both parents, the child’s wishes, and any history of family violence or abuse. 

FAQs:

• What are the parental rights in Australia?

Parental rights in Australia refer to parents’ legal claims and duties to their children, which include decisions regarding their welfare, education, and health.

• How may I apply for sole parental responsibility in Australia?

If you want sole parental responsibility, you must apply to the Federal Circuit Court of Australia for a Parenting Order granting you sole custody. You must show that the presumption of shared equal parental responsibility harms your child’s well-being and will cause bodily or emotional harm.

The legal process might be complex, so we suggest contacting one of our family lawyers, who will assist you throughout the application process.

• What considerations does the court make when granting sole parental responsibility?

The court evaluates the child’s best interests, their relationship with both parents, each parent’s capacity, any history of violence or abuse, and the child’s choices.

• Is it feasible to have sole parental responsibility yet joint time?

If practical, one partner can be given sole parental duty while still spending time with the other parent or even a grandmother.