One of the biggest misunderstandings of Australia’s family law is that the presumption of equal shared parental responsibility means that mums and dads must equally share the custody of a child. In fact, the Family Law Act 1975 (the Act) doesn’t say exactly how parents must divide time with their children. There is no automatic “50/50” or formula when it comes to child custody in Australia. Let’s take a brief look at what the concept of equal shared parental responsibility actually means.
The issue is so confusing for families that over the years, expert consensus from the various parliamentary inquiries and a family law review by the Australian Law Reform Commission has been that the presumption of equal shared parental responsibility should be removed and replaced with something whose meaning is much clearer to everyone. Recently, a Queensland MP put forward a private members’ bill to the Federal Parliament seeking to remove the presumption of equal shared parental responsibility from the Act.
The Act describes parents as having “parental responsibility” for their children and for courts to order that the parental responsibility can be “equally shared” (shared by both parents) or “sole” (exercised by one parent only). There is a presumption that when a court makes an order in a parenting matter, it will make an order for equal shared parental responsibility” for parents of a child unless there is an exception, in which case an order for sole parental responsibility is made.
Parental responsibility means all the duties, powers, responsibilities and authority which by law, parents have in relation to children. This includes long term decisions, such as education, health and religion.
If a court makes an order for equal shared parental responsibility it means that the parents need to cooperate with each other and jointly make long term decisions (such as where the child should live and go to school, and decisions concerning medical treatment and the religious upbringing of the child) but the day-to-day decisions (such as what a child wears, what activities they engage in and what they eat) will remain the responsibility of the parent who has care of the child at that time.
With sole parental responsibility, one parent is solely responsible for making the major decisions about the child described above, while each parent is otherwise responsible for the day-to-day decisions concerning the child whilst the child is in their respective care.
Equal shared parental responsibility vs. equal time
If a court orders equal shared parental responsibility, it will separately work out how much time the child should spend with each parent, based on a number of considerations and guided overall by the ‘best interests of the child’ mandate.
A court must firstly consider whether an equal time arrangement would be in the child’s best interests and practicable. The court is certainly not required to order equal time just because an order for equal shared parental responsibility has been made. If the court determines that equal time is not in the child’s best interests, then the court would next look at whether the child spending significant and substantial time with each parent is in the child’s best interests, and if not, then finally what other time arrangements would be in the child’s best interests.
When the presumption is overridden
Although there is a presumption in favour of equal shared parental responsibility, it will not apply if a court is satisfied that a parent has engaged in family violence or other child abuse or neglect. In those cases, an order for sole parental responsibility can be made.
But MP Grant Perrett, who put forward the recent bill regarding Equal Shared Parental Responsibility, said the current law was problematic because its language “set up a false expectation that parents have some right to guarantee equal time with their children. This can incentivise an abusive partner to litigate their parenting dispute. It may [also] lead to a parent agreeing to an unsafe parenting arrangement, in the belief that they have no choice.”
We need to talk…
One thing that people sometimes find surprising is that the family courts may also order sole parental responsibility if they find that the parents are unable to effectively communicate regarding the care of the child. Overall, the court will only make an order for equal shared parental responsibility if it is considered to be in the child’s best interests. If the court considers that the parents are unable to communicate effectively so that they can jointly agree on major decisions, then it may not be in the child’s best interests, as the conflict could impact on the child.
This doesn’t mean you have to engage in long conversations with your ex about your child’s development, but it does mean you need to be able to discuss aspects of your child’s care reasonably and practically. The use of shared family calendars and email filtering software like Toppako can be a big help in avoiding problems communicating.
This aspect is so important to family court judges that co-parents who have demonstrated an inability to communicate with their ex have found they have lost custody of their child as a result.
The equal shared parental responsibility provisions of our family law will likely be the subject of much debate as the Government’s current inquiry proceeds.
If you have found yourself dealing with a co-parent who is difficult to communicate and negotiate with, give us a call as we have experience in such situations. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
