What is the definition of ‘shared parental responsibilities’?

A common misconception for parties in family law disputes is the difference between an order for equal shared parental responsibility and an order for equal time with the children. The two orders, while separate, are not mutually exclusive.

Parental responsibility is given naturally to any parent of a child. It can only be taken away by a subsequent court order. Parental responsibility in relation to a child is defined by the Family Law Act 1975 (‘the Act’) as:

• all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

So what does this mean in the context of a court order?

An order for equal shared parent responsibility

An order for shared parental responsibility requires the parties to consult one another on any major long-term issue concerning the child and make a genuine effort to reach a joint decision about it.

In the event of a stalemate between the parties on a major long-term issue concerning the child, the parties will need to attend mediation. In circumstances where mediation fails or is not appropriate, the matter will need to be decided by a Court.

Major long-term issues usually relate to the care, welfare and development of the child including, but not limited to:

• the child’s education (both current and future); and
• the child’s religious and cultural upbringing; and
• the child’s health; and
• the child’s name; and
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by one parent to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

There is no obligation under a shared parental authority order to also consult with the other parent on day-to-day issues concerning the child.

An order for equal time with children

The connection between a shared parental authority order and equal time is that when one party seeks an order for equal shared parental responsibility, the court must also consider whether it is appropriate to also make an order for equal time, even in circumstances where neither party has sought such an order. The best interests of the child remain the paramount principle under the Act, however, and so the court must consider the specific guidelines set out in the Act as to how to decide what is in that child’s best interest.

A court order regarding whom a child is to live and spend time with will always form a separate order and will not always result in equal time between the parents.

For more information or to talk with a Family Law expert, please contact Ms Simone Green at Streeterlaw on {module_contentholder,46501} or email advice@streeterlaw.com.au.