Drafting Parenting Orders | Decision Making

What is this order all about?

This order establishes how parents will make important decisions for children. The sort of decisions we are talking about are described as ‘major’ and 'long-term’ issues relating to a child – to be distinguished from day-to-day issues. For example, what the child eats for breakfast, and whether the child goes on a play date.

This is the definition in the Family Law Act:

"Major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)  the child's education (both current and future); and

(b)  the child's religious and cultural upbringing; and

(c)  the child's health; and

(d)  the child's name; and

(e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

Some examples of what would be considered a “Major long-term issue” is:

• what school does a child go to
• an important medical decision, for example whether a child has an operation;
• what religion a child will be;
• how will the child learn about and be exposed to their culture;
• changing any part of the child's name;
• moving away from a place with a child.

Parents are generally expected to share the responsibility of making important decisions, and parents are expected to consult with each other and make a genuine effort to reach a joint decision on these matters.

An order that provides for parents to share decision making would be drafted like this:

Shared decision making

1. The father and mother have joint parental responsibility for making decisions about major long term issues for the children ( full names and dates of birth for each child) (“the child/ren”).
2. For the purposes of these Orders, a major long-term issue shall include, but is not limited to, issues about: -

(a)           The children’s education (both current and future);

(b)           The children’s religious and cultural upbringing;

(c)           The children’s health;

(d)           The children’s names/name; and

(e)           Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

3. The father and the mother have responsibility for the day-to-day care welfare and development of the children when the children are in their respective care.

Sole Decision making

However, there will be circumstances where it would not be in a child's best interest for their parents to share decision making. Such circumstances include for example, where there has been family violence and it would expose a parent to a risk of harm if they had to consult with the other parent and/ or because of the family violence the parent is simply unable to properly consult with the other parent.

Other situations are where parents cannot communicate with each other without conflict; where a parent is difficult to contact; and also includes scenarios where joint decision making would not be possible because of issues with the other parents such as mental health, drugs and alcohol.

In these circumstances the more appropriate order would be for one parent to have sole decision making. Important decisions for children need to be made without the risk of parents reaching an impasse because they cannot agree and so the important decision is unable to be made for the child.

An order for sole decision making would look like this.

The (insert which parent) shall have sole parental responsibility for making major long-term decisions for the child/ren, (insert full names and dates of birth for each child) (“the children”).

You can go on to add order 2 in the above example which sets out what those decisions are.

It is important to carefully consider whether sole decision making is in the best interests of children. As a general rule of thumb where children live in a shared care arrangement or they spend significant time with each parent, the usual best outcome would be for parents to share decisions. Similarly, if a child lives primarily with one parent and spends little time with the other parent, sole decision making to the parent with whom the child lives may be the most appropriate order.

A parent who has sole decision making will decide what school the child goes to, what religion the child will be, that parent will make all health decisions, that parent has the ability to change the child's name without the consent of the other parent, that parent can obtain a passport without the consent of the other parent, and that parent can relocate away from the other parent with the child without the other parent’s consent. However, a parent would not be able to relocate if by doing so, any orders for time spending with the other parent would not be able to take place.

A compromise position

A good compromise in circumstances where it would be best for a child if one parent did make the decision solely, but where parents have a level of communication, is an order where the parent making the decision will let the other parent know what decision they propose to make, consider the other parent’s point of view, make the decision and let the other parent know what that decision is.

That sort of order would look like this:

In exercising sole parental responsibility the ( insert parent  - “P”) must:

1. Advise the (other parent - OP) in writing (?) days prior to making any long-term decision required to be made in relation to the children, including details of why the decision is required and the options being considered by the (parent);
2. Allow the OP ? days to respond to the P’s proposal:
3. Prior to making the final decision, the P must consider the OP’s response. However, the decision shall be solely the Ps to make; and
4. The P must inform the OP in writing of his/her decision within ? days of making such decision.

TO NOTE - Decision making does not need to rest with a parent. The orders could provide that a grandparent, for example, could make decisions.