Equal shared parental responsibility
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:
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 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:
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.
In determining whether equal time is reasonably practicable, the court can consider (amongst other things):
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:
There are other relevant factors.
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 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.