When parents disagree
Parental responsibility (PR):
Family Law Act 1975 (Cth) s 61B
“Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” AustLII
Key points
| Aspect | What it means | Authority |
|---|---|---|
| Who holds PR by default? | Each parent of a child < 18 yrs, despite separation or new partners, unless a court order varies it. | s 61C FLA AustLII |
| Shared vs sole PR | The court can allocate PR jointly, solely, or for specific domains (e.g. health only). | Parenting orders, s 65DAA |
| Recent change (6 May 2024) | The presumption of equal shared PR has been repealed. Courts now start from a clean slate and allocate PR solely on best interests. | Family Law Amendment Act 2023 (Cth) Farrawell Family LawFCFCA |
When parenst disagree:
Check the child first
Gillick competence – if the child is mature enough to understand the nature, risks and consequences of the specific treatment, their own consent is sufficient. RACGP
Is there a current parenting order?
- If one parent has sole PR for health, you can rely on that parent’s decision.
- If PR is shared (the usual position where no order limits it), major decisions require consultation.
Nature of the treatment
| Level of intervention | Typical consent rule¹ | If parents disagree |
|---|---|---|
| Emergency / life‑saving | No consent needed – treat under the common‑law doctrine of necessity or relevant state statute (e.g. s 174 Children & Young Persons (Care & Protection) Act NSW). | Proceed to save life/avoid serious harm and document. Australian Emergency Law NSW Health |
| Major or irreversible (surgery, long‑term psychotropic meds, gender‑affirming hormones, removal of organs, sterilisation) | If PR is shared, both parents’ consent (or court order) is required. | Defer if non‑urgent, advise parties to seek urgent legal advice or apply to the Federal Circuit & Family Court |
| Routine / minor (immunisations, imaging, short‑course antibiotics, simple fracture cast) | Consent from one parent with PR is usually sufficient. | You may proceed with the consenting parent’s authority, but good practice is to encourage communication and note dissent. Royal Children’s Hospital |
Practical tip: Document the facts giving you “reasonable belief” that the consenting parent holds PR and that the child lacks capacity for self‑consent.
## Special scenarios
| Scenario | What the clinician should do | Rationale / reference |
|---|---|---|
| Parents have 50 %‑50 % time but no court orders | Each still has full PR. Follow the table above. | Time‑sharing and PR are legally distinct. |
| One parent refuses a recommended but non‑urgent treatment (e.g. tonsillectomy) | Defer; advise mediation → if stalemate, either parent can apply to court for specific orders on health decisions. | Court will apply “best interests” factors after 6 May 2024. FCFCA |
| Vaccination dispute | Unless an order says otherwise, it is classed as major long‑term (public‑health implication); obtain agreement or court direction. | Recent Family Court cases treat immunisation as a long‑term issue. |
| Child under statutory child‑protection order | Sight the written Instrument/Delegation of Consent from the Department; follow the scope it provides. | State child‑protection legislation. |
| Refusal of life‑saving treatment by both parents | Invoke parens patriae (state Supreme Court) or urgent FCFCOA order; initiate life‑saving measures under necessity while order is sought. | High Court doctrine + state Acts. |
## Clinical checklist
- Capacity first: Gillick test for the child.
- Authority next: Sight birth certificate, court orders, or departmental authorisation.
- Nature of treatment: Emergency ↔ routine ↔ major/irreversible.
- Document everything: Who consented, what authority you saw, any dissent, your capacity assessment, clinical risks discussed.
- Best interests paramount: If uncertain, seek urgent legal/defence advice before proceeding with non‑emergency care.
### Take‑home
Parental responsibility is the legal key to consent—not who the child lives with.
After the 2024 reforms, there is no automatic “equal shared” presumption, so always check for current orders. If parents disagree on significant treatment and the child lacks capacity, defer non‑urgent care and advise a court application; for emergencies, treat first and document later.