The concept of equal shared parental responsibility is a cornerstone of Family Law child related matters but what does equal shared parental responsibility actually mean?
Section 61B of the Family Law Act 1975 (Cth) (“the Act”) defines parental responsibility as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’
At Section 61DA, the Act goes on to create a presumption of equal shared parental responsibility. Each parent is presumed to have an equal say in key parenting decisions regarding their child, such as religious observance or schooling.
This presumption can be rebutted in certain circumstances, for example when one parent has subjected the child to abuse or family violence or where the Court considers it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
When explaining the concept of equal shared parental responsibility to clients, a parent will often assume that this means there is a similar presumption allowing for a child to spend equal time with each parent following separation. This is not the case.
It is important to remember that s60CA of the Act states the paramount consideration the Court must take into account when making child related orders is ‘the best interests of the child.’
Advice from child behavioral psychologists suggests that young children require the stability of an identifiable primary carer and a ‘home base’ where they live for the majority of the time. As such, particularly in matters concerning very young children, the Court may be hesitant to make orders for equal time with each parent.
Further, as children get older the Court also begins to place greater significance on the views expressed by the child when making child related orders. If a child in their teens expresses a strong preference to live primarily with one parent the Court is unlikely to make orders contrary to these wishes.
It is important to stress to parents that the concept of equal shared parental responsibility operates concurrently with any orders made regarding the arrangements for the child’s time with each parent and does not mean a parent has a ‘right’ to equal time.
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