Equal Shared Parental Responsibility – a Misunderstood Concept in Family Law

By Margie O’Neill 2 October 2019

The Family Law Act refers to parents having ‘parental responsibility’ for the child of the relationship. The Court can decide on parental responsibility to be ‘equal’ (shared by both parents) or ‘sole’ (exercised by one parent). Equal shared parental responsibility is not parents having equal time with their children or shared care of the child.

The Court typically presumes that it’s beneficial for separated parents to have equal shared parental responsibility when issuing a parenting order. Consequently, this entails parents collaborating and jointly bearing responsibility for significant long-term matters, except in specific circumstances. Parents should grasp the concept of ‘parental responsibility’—whether equal or shared—and its significance in Family Law cases.

Major Long-Term Issues

If the Court orders equal shared parental responsibility, parents are required to collaborate and jointly decide on ‘Major Long-Term Issues’ concerning their children. Additionally, these encompass the child’s education, religious and cultural upbringing, health, name, and living arrangements.

The definition of parental responsibility does not apply to day to day decision making which can be made by the parent with whom the child is spending time.

The Exceptions

The exceptions to making an order for equal shared parental responsibility include:

• Where there is evidence present of abuse of a child or children;
• Where there has been evidence of family violence or abuse.

Other important considerations:

• If there are high levels of parental conflict;
• Infants and young children.

If the Court does decide that equal shared parental responsibility is applicable, then it must consider if equal time is appropriate by asking the following questions:

• Is it reasonably practicable?
• Is it in the child’s best interest?

Reasonably practicable includes:

• How far apart the parents live from each other;
• The parents’ current and future ability to be able to maintain arrangements for the child spending equal time;
• The parents’ current and future capacity to communicate with each other and to work through any difficulties that may come up;
• The impact that any equal time arrangement would have on the child; and
• Any other relevant matters.

Best Interest factors

The Court’s primary focus when assessing a child’s best interests is to ensure a meaningful relationship with both parents, while simultaneously, safeguarding them from harm or exposure to abuse, neglect, or family violence.

Some of the other factors when considering a child’s best interest include:

• Views expressed by the child;
• Nature of the relationship with each parent;
• The extent that each parent has taken the opportunity to spend time; communicate with and participate in major long-term issues of the child;
• Whether a parent has fulfilled or failed to fulfil their obligations to maintain the child;
• The capacity of each parent to provide for the needs of the child (including physical and emotional); and
• The will and capacity of each parent to facilitate and encourage close and continuing relationships with the other parent.

Substantial and Significant Time

If the Court does decide that equal shared care is not in the child’s best interests, the Court must consider substantial and significant time, which means:

• The time the child spends with the parent including weekdays, weekends and holidays;
• The time the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events which are of significance to the child;
• Spending time with the child during events which are significant to the parent.

If you have any questions or would like some assistance, please do not hesitate to contact one of our lawyers at De Saxe O’Neill on 02 9948 3820.

Disclaimer: The contents of this paper are not intended to be complete statement of the law on any subject and should not be used as a substitute for legal advice in specific situations. De Saxe O’Neill Lawyers do not accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this paper.