Equal shared parental responsibility does not equate to, or does not have the same meaning as, an equal shared care arrangement. Clients sometimes confuse the two.
Section 61B of the Family Law Act, 1975 (“the Act”) defines parental responsibility as follows:
“Parental responsibility in relation to a child means that all the duties, powers, responsibilities and authority which by law, parents have in relation to children”.
Where there are no parenting Orders and no Court Orders in place, then the law is:
“Each of the parents of a child who is not 18 has parental responsibility for the child”
However, whilst this means either, or both parents can make decisions, in order to act in accordance with the intentions of the Act, consultation should occur on major long term issues.
The five main issues that are considered major long term issues include the following:
1. The child’s education (both current and future)
2. The child’s religious and cultural upbringing
3. The child’s health
4. The child’s name
5. Changes to the child’s living arrangements that make it harder for the child to spend time with a parent.
Parents may agree that they will have equal shared parental responsibility or they may agree that one parent has sole parental responsibility. Parents may also agree to what is known as a “mix and match” arrangement where each parent has parental responsibility for the making of different major long term decisions. The agreement parents reach may be informal, or may be documented in a Parenting Plan or by way of Consent Orders made by the Court. If parents cannot agree, it may be that the Court is asked to determine the matter.
Under the Act, there is a presumption that parents have equal shared parental responsibility. That is, it is in the best interests of the child for parents to jointly decide on major long term issues with respect to the child. There are exceptions to this presumption and this presumption can in some cases be rebutted.
If the Court makes an Order for equal shared parental responsibility, then the Court must consider whether it is in the child’s best interest for him or her to spend equal time with each parent. That is, for there to be “an equal shared care” arrangement. This is decided on a case by case basis taking into account numerous considerations. The paramount consideration is always what is in the best interests of the child. If the Court does not consider it is in the best interests of a child to spend equal time with each parent, then the next step is for the Court to look at which parent the child should live with and what time the child should spend with the other parent.
There is no “hard and fast rule” or “one size fits all” in parenting matters. Certainly, what occurred in a friend’s case or another family member’s case may not be suitable in your case. It is important that you get specialised family law advice.
Doolan Callaghan Family Lawyers are highly experienced in guiding clients through the process and assisting in reaching an agreement with their former partner in relation to ongoing parenting arrangements and advising the best approach in each client’s matter. Mediation and collaborative law can be very useful in this area of law.
Please do not hesitate to contact us to arrange a no-obligation consultation. You may call us on 9984-7411 or email us on enquiries@doolancallaghan.com.au.