In 2006 the Family Law Act was significantly amended to include a presumption of both parents having equal parental responsibility for their child.
The presumption of equal parental responsibility will apply, unless there are reasonable grounds to believe that a parent of the child has engaged in ‘family violence or abuse of the child, or another child who, at the time, was a member of the parent’s family’.
As a result many parents have presumed that after they separate they will be able to share equally in the care of their children.
While it may sound like that the presumption of equal parental responsibility relates to the parent’s spending equal amounts of time with the child, it actually refers to the parent’s having equal decision-making power for the long-term care, welfare and development of a child: for example where the child attends school and what medical treatment the child receives.
Determining how much time the child spends with each of its parents and who the child lives with is governed by the principles contained in the Family Law Act as amended and in particular the principle known as ‘the best interests of the child’.
There are numerous factors that need to be considered when determining what is in the child’s best interests, but some of the most important are ‘the benefit of the child having a meaningful relationship with both parents’ and ‘the need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect, of family violence’.
While the Court must consider whether making an Order for the child to spend equal time with both parents, in the event that the presumption of equal parental responsibility applies, the Court must consider whether that is in the best interests of a child and whether it is reasonably practicable.
No general rule applies to whether or not an Order for equal time will be made by a Court, but there are several common factors usually present where shared care is ordered or is agreed to by the parents themselves. For example, the parents need to be able to afford two viable homes sufficiently well furnished to allow children to stay comfortably in each home, live reasonably close to one another and have sufficient flexibility in their working arrangements (or sufficient support in terms of child care) to make the arrangement practicable.
Whilst people may be under the impression that the 2006 amendments have meant that children will spend equal time with both parents in the event that they separate, it should be noted that shared care parenting arrangements even since the 2006 reforms remain unusual in Australia.
In fact only 8% of parents who do not live together have a shared care arrangement involving 35% or more nights with each parent, with just over half of these 4% having an equal time arrangement.
If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist Family & Relationships lawyers.