Equal shared parental responsibility

By Lisa Lahey / 04 October 2017

How shared parenting responsibility is determined under the Family Law Act 1975 

Section 61DA of the Family Law Act 1975 (Cth) contains a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility of the child.

This is not a presumption that the amount of time the child spends with each parent is equal, rather that the parental responsibility for a child is equal. Parental responsibility means the duties, powers, responsibilities and authority by law which parents have in relation to children.

This presumption will not apply if there are reasonable grounds to believe that a parent has been engaged in:

  • abuse of the child or another child who was a member of the parent’s family; or
  • family violence.

If the presumption applies

Where the presumption applies and is confirmed by an order pursuant to section 61DA of the Family Law Act parents must consult each other in relation to parental responsibility decisions for the child that must be made and make a genuine effort to come to a joint decision.

Parental responsibilities include:

  • the child’s education (both current and future);
  • the child’s religious and cultural upbringing;
  • the child’s health;
  • the child’s name; and
  • changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with a parent.

The definition of parental responsibility does not extend to matters which are considered to be day-to-day decision making, which can be made by the parent with the care of the child.

If the court decides the presumption of equal shared parenting responsibility applies, the court must then consider if equal time with the children is appropriate. When determining this, the court asks the following questions:

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

If the court considers that shared care is
not reasonably practicable and/or isn’t in
the child’s best interests, the court must
then consider whether substantial and
significant time is more appropriate.

Reasonably practicable

In determining whether equal time is reasonably practicable, the court can consider (amongst other things):

  • how far apart the parents live from each other;
  • the parents’ current and future capacity to implement an arrangement for the child spending equal time;
  • the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
  • the impact that an arrangement of that kind would have on the child; and
  • such matters as the court considers relevant.

Best interest factors

The primary 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 subjected to, or exposed to, abuse, neglect or family violence.

Some of the other best interest factors that can be considered by the court include:

  • views expressed by the child;
  • nature of the relationship of the child with each parent;
  • the extent the each parent has taken the opportunity to spend time, communicate with and participate in major long-term issues of the child;
  • the extent to which each of the child’s parents 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 both physical and emotional); and
  • the willingness and ability of each parent to facilitate and encourage close and continuing relationships with the other parent.

There are other relevant factors. 

Substantial and significant time

If the court does not consider shared care in the child’s best interests, the court must consider substantial and significant time, which is:

  • 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 particular significance to the child; and
  • spending time with the child during events which are significant to the parent.

The contents of this paper are not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations. HopgoodGanim Lawyers cannot 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.

Lisa Lahey
Lisa is a Partner in our Family and Relationship law practice with over 25 years of experience advising on all facets of family law, including complex property and children’s matters.
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