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Family Dispute

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 and the Court may make an order for 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.

When the Court is making a parenting order, the Court must presume that it is in a child’s best interests for separated parents to have equal shared parental responsibility. This means that parents must consult each other and share responsibility for major long-term issues unless there is an exception. It is important for parents to understand the term ‘parental responsibility’ – equal or shared and what it means in a Family Law matter.

What are Major Long-Term Issues?

If the Court makes an order for equal shared parental responsibility, then the parents must consult each other and attempt to make decisions jointly about ‘Major Long-Term Issues’ for their children. These are:

  1. The child’s education (both current and future);
  2. The child’s religious and cultural upbringing;
  3. The child’s health (including decisions about treatment, immunisations etc);
  4. The child’s name; and
  5. Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

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.

What are 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 no exception applies?

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 prime consideration of the Court when determining a child’s best interests is the benefit to a child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm and from being exposed or subjected 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.

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.

Associations

  • The Law sociaty of NSW
  • Doyles - Family Law 2020
  • Family Law Section - Law Council of Australia - Member 2019/2020
  • Collaborative Professionals (NSW) inc

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