Family Law Case Note: Does equal shared parental responsibility mean that both parents have a right to spend equal time with their children?
Publish Date: October 11, 2012
As a result of the recent amendments to the Family Law Act in 2006, concepts such as "equal shared parental responsibility", "shared care", "spending equal time" have received a lot of media attention and have been the subject of public debate as to what they all mean for separated parents and their relationships with their children.
Many media reports have created an incorrect belief that if a parent has equal shared parental responsibility then this also translates to each parent having an entitlement to spend equal time with their children. To their surprise, many parents find that the social expectations created by the media as opposed to the legislative reality of these concepts on the other hand, are very different in real life. This often creates confusion and disappointment as to what many parents' rights and responsibilities are.
Firstly, let's deal with the concept of parental responsibility. In accordance with the provisions of the Family Law Act, when the Court is asked to make a Parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared responsibility for the child. This usually applies in most cases unless there are allegations of abuse and domestic violence involving the child. Parental responsibility refers to each parent's ability to make decisions about the long-term care, welfare and development of the child. It does not "confer a right" to a parent as to how much time a parent can or should spend with their child.
Now let's turn to the concept of "spending time with the children". If the parents are unable to resolve the parenting arrangements on their own or through mediation, the Court has to follow the process which is set out in the Family Law Act, namely under section 60CC in order to determine what is in the "best interests of the child" when it comes to determining the periods of time each parent is to spend with the child. In addition, the Court can take into consideration whether a child spending equal time with each parent is reasonably practicable.
In some cases where both parents have very good communication, have similar values in relation to their children's upbringing, are co-operative and flexible and can make a shared care arrangement work and lastly but not least, are able to place their children's needs first, the Court may determine that such an arrangement is in the children's best interests and then the Court can order that the children spend equal periods of time with each parent.
However, in many cases, other objective and subjective factors come into play which may render a shared care regime unworkable or not in the children's best interests. Examples of this is where there is a high level of conflict between the two parents or where the child is of a very young age and has a primary attachment with one of the two parents or one parent has not had a great deal of involvement in the care of the child or where both parents live far apart from one another. In these cases, the Court may determine that it is in the children's best interests that the child live primarily with one parent and spend significant periods of time with the other parent.
This list is not exhaustive of the types of considerations which the Court can have regard to when determining what is in the children's best interests. In our experience, each case is different and unique and a careful case-by-case approach is required to be adopted when determining what is in the children's best interests.
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