Equal Shared Parental Responsibility – What does this mean?

20/05/2019

In the early years following the introduction of the Family Law Act in 1975 the Act talked about children in terms of custody and contact with the parent who did not have custody of the children.

Section 61DA of the Family Law Act provides that there is a presumption that it is in the best interest of the child that the child’s parents have equal shared parental responsibility for the child.  This is a lofty phrase but what does this actual mean?

There is a distinction to be made between parental responsibility and the time that a child spends with each parent.  The assistance of an order for equal shared parental responsibility does not mean that the child or children spends the same amount of time with each parent.  The way in which the concept of parental responsibility is implemented is variable.

The presumption of equal parental responsibility will not be adopted by a Court if the Court (Family Court of Australia or Federal Circuit Court of Australia) finds on the basis of the evidence before the Court that there has been family violence or abuse of the child or another child who is a member of the parents’ family.

What are parental responsibilities?

  1. Education.
  2. Religious and cultural upbringing.
  3. Health.
  4. The name of the child.
  5. The living arrangements for the child.

It is not practical for parents to having meetings or discussions each day in relation to these types of issues and in practical terms, the day to day decisions to be made in respect of the child when they are living with a particular parent, must be made by the parent with whom they are spending that time. 

The Court will consider equal time with each parent but this must be practical and must also be in the child’s best interest.  The wishes of the parents or the wants and needs of the parents are not the approach taken by the Court.  The Court will look at what is in the child’s best interests. 

The factors that a Court looks at when determining what is in the best interests of the child are to be found in Section 60CC.  The significant factors that will be considered by the Court are:

  • The views expressed by the child.
  • The nature of the relationship of the child with each of their parents. 
  • The extent to which the parent is taking opportunity to spend time, communicate with and participate in the major long-term issues relating to the child. 
  • The extent to which each of the children’s parents has fulfilled or failed to fulfill their obligations to maintain the child – child support. 
  • The capacity of each parent to provide for the needs of the child including the physical needs and emotional needs.
  • The willingness of each parent to facilitate and to continue relationships with the other parent. 

What is Significant Time?

The Court must consider substantial and significant time which is:

  • The time the child spends with each parent including weekdays, weekends and holidays. 
  • The time the child spends with each parent should allow each 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. 

At Watson & Watson our experienced Family Law Solicitors can assist you in relation to all contact matters.  If you're unsure as to what your rights are in relation to contact for your child/ren irrespective of whether your child/ren currently reside with you or with the other parent or you are about to enter into contact arrangements and have any concerns, please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek advice on this very important matter so that you can ensure that contact arrangements made are in the best interest of your child/children.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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