Shared Parental Responsibility and Equal Time

Under the law, each parent has parental responsibility for a child who is under 18 years of age. This continues to be the case even if the parents separate or either or both of the child’s parents re-partner or re-marry.

What is parental responsibility?

Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children. This involves the parents having a say in the major decisions that affect a child’s life, including where the child lives, medical treatment, education and religion. In Australia, the Family Law Act 1975 (Cth) uses the concept of “parental responsibility” rather than “parental rights” in recognition that parental powers exist for the benefit of the child, and not for the benefit of the parent.

When a relationship breaks down, the law applies a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. This means that when making a parenting order, the Court is required under law to presume that it is in a child’s best interest for the child’s parents to have equal shared parental responsibility for the child.

Where there is no Court order, parents are able to exercise their parental responsibility independently or jointly and there is no obligation for the parent’s parental responsibility to be shared. However, when the Court makes an order for equal shared parental responsibility, the parents are required to consult with one another and make decisions about major long term issues that affect the child jointly, unless the court orders otherwise.

The presumption of equal shared parental responsibility will not apply if there is evidence that a parent or a person who lives with that parent has abused the child or engaged in family violence (such as emotional, economic or psychological abuse). The presumption can also be rebutted if the court believes that shared parental responsibility is not in the best interests of the child.

It is important for parents to understand that the presumption of equal shared parental responsibility does not mean a presumption for each parent to spend equal time with a child. If the Court is to apply the presumption of equal shared parental responsibility when making parenting orders, then the Court will use that presumption as the starting point for considering whether it is practical to make an order for the child to spend equal time with each parent.

Will the Court make an order for equal time?

The court will only make an order for a child to spend equal time with the parents if the court is satisfied that:

1. it is in the best interests of the child;
2. it would be reasonably practicable for the child to spend equal time with each parent.

When making parenting orders, the child’s best interests remain the overriding consideration. When considering the best interest of the child, the Court will look to various factors set out in the legislation, including, but not limited to:

1. the benefit to the child of having a meaningful relationship with both parents;
2. protecting the child from harm;
3. views expressed by the child; and
4. the extent each parent has participated in decisions affecting the child or spent time with the child.

When considering whether a proposed order for equal time is “reasonably practicable”, the Court must have regard to:

1. how far apart the parents live from one another;
2. the parent’s current and future capacity to implement such an arrangement for equal time and the impact of such an arrangement on the child; and
3. other matters the Court considers relevant.

If the Court decides not to make an order sought for equal time, the Court must consider whether it would be in the child’s best interests and reasonably practicable for the child to spend “substantial and significant time” with each parent. An order for substantial and significant time will often involve an order for the child to live with one parent and spend designated time with the other parent that will include days that fall on weekends, weekdays and other such time as would allow the parent to be involved in the child’s daily routine and significant occasions.

If the Court decides that neither equal time nor substantial and significant time are in the best interests of the child, then the Court will use its discretion to make orders as to arrangements for the care of the child, considering the best interests of the child as provided for in the legislation.

Key takeaways

1. Parental responsibility means all the duties, responsibilities and authority which parents have in relation to children.
2. Under the law, each parent has parental responsibility for a child who is under 18 years of age.
3. Where asked to make parenting orders, the Court will presume (unless otherwise rebutted) that it is in the best interest of the child for their parents to have equal shared parental responsibility for the child.
4. Equal shared parental responsibility does not mean the child spends equal time with each parent. There is no presumption for equal time under the Family Law Act 1975 (Cth).
5. When considering the time that a child should spend with each parent, the Court will consider the best interests of the child as paramount, and also whether such an arrangement is reasonably practicable.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.  If you have recently separated or have any questions about your current situation, please call us on (02) 9929 8840 or get in touch with us online here to discuss your matter.

Lauren Sanderson
Solicitor

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.