Last updated 8 August 2016
Parental responsibility is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B Family Law Act 1975 (Cth) (Family Law Act)).
Those responsibilities are not further defined, but arise from common law principles or are provided for in other legislation. They include responsibility to:
- determine the child’s upbringing, religion and education
- discipline the child
- consent to the child’s adoption
- take legal proceedings on the child’s behalf.
Various statutes impose specific duties upon parents. These include the duty to:
- maintain the child (s 66C Family Law Act)
- provide the child with necessaries such as adequate food, clothing, medical treatment, lodging and care (ss 285, 286 Criminal Code Act 1899 (Qld) (Criminal Code))
- enrol and ensure attendance of the child at school (s 176 Education (General Provisions) Act 2006 (Qld)).
Who has parental responsibility?
In the absence of any order by a court to the contrary, both parents have parental responsibility for the child. They are also entitled to have the child in their care.
When parents have willingly allowed another to look after their child, the parents can require the child to be returned to them.
Anyone concerned with the care, welfare and development of a child including grandparents, other relatives and friends may apply to a court for orders relating to the child. For more information on the law on this subject see chapters Post-separation Parenting, and Spousal and Child Maintenance and Child Support.
When parents do not live together
When parents do not live together, arrangements need to be made for the continuing care of their children. Parents and other adults responsible for the care of children are encouraged to make their own arrangements, as long as these provide safety for the children and the parents, rather than go to court. Parents can either:
- agree informally
- enter into a parenting plan
- define the arrangement in consent orders that are filed in the Family Court or Magistrates Court.
When those responsible for the care of children cannot agree or communicate effectively, one or more of them can request that a court with power under the Family Law Act make orders about the parenting of children.
These orders address questions such as:
- the person or persons with whom a child is to live
- the time a child is to spend with another person or other persons
- the form of consultation persons who have parental responsibility for a child are to conduct with one another about decisions to be made in the exercise of that responsibility
- the communication a child is to have with another person or persons
- the process to be used for resolving disputes about the terms or operation of the orders.
Children who leave home can sometimes be forced to return, either by their parents or the state.
Applications for child protection orders
The police and the Queensland Department of Communities, Child Safety and Disability Services may investigate if a parent complains that a child under 18 years has left home. If the child is in need of protection from harm, police or an authorised officer from Child Safety Services may bring an application for a child protection order for the child.
Such an application would be unlikely to succeed if a child under 18 years can properly support themselves, has adequate housing, is not committing or likely to commit a crime and is not in a situation that poses harm to themselves. These applications will be discussed under Child Protection.