Common misconceptions in family law parenting matters

The term "equal shared parental responsibility" is commonly used in family law matters involving children and is often confused with the term "equal time". In this article we address some of the common misconceptions regarding the two terms as they are used in family law parenting matters.

Equal shared parental responsibility is not the same as equal time

There is a presumption in the Family Law Act 1975 (Cth), subject to some limited exceptions, that it is in the best interests of a child for the child's parents to have equal shared parental responsibility. Parental responsibility is defined as all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This presumption relates solely to how parents make decisions for their children. It does not mean there is a presumption that children spend equal time with their parents.

That is an important distinction.

But what does equal shared parental responsibility mean in a practical sense? Parents who share parental responsibility equally must make a genuine effort to consult one another when making decisions involving long-term issues concerning a child's care, welfare and development. This includes decisions relating to the child's health, education, cultural upbringing and living arrangements, particularly where a change to those arrangements would make it more difficult for a child to spend time with one of their parents.

The presumption of equal shared parental responsibility can be rebutted – meaning, there are circumstances where it will not apply. For example, if there are reasonable grounds to believe that a parent (or a person living with a parent) has engaged in child abuse or family violence, or it would otherwise not be in the child's best interests, the court will not apply the presumption of equal shared parental responsibility and has the power to allocate parental responsibility between parents as it considers appropriate.

There is no presumption that children must spend equal time with each parent

Unlike the presumption of equal shared parental responsibility, the Family Law Act does not provide that a child must spend equal time with each parent after their parents separate.

Even where parents do have equal shared parental responsibility, the court can only make an order for an equal time arrangement if it first finds that it is both in the best interests of the child, and reasonably practicable to do so. If an equal time arrangement is not appropriate or practicable, the court must instead consider making an order that the child spend "substantial or significant time" with both parents.

When determining the amount of time a child should spend with each of their parents, the child's best interests are the paramount consideration for the court. When determining what arrangements are in the child's best interest, the court will take into consideration several factors including, but not limited to, the following:

• The benefit to the child of having a meaningful relationship with both parents
• The need to protect the child from physical and psychological harm resulting from being subject to or exposed to abuse, neglect or family violence
• Any views expressed by the child
• The nature of the relationship of the child with each of the parents and their respective families
• The practical difficulty and expense of a child spending time with and communicating with a parent
• Current and historical parenting arrangements.

It may be easy after separation, when emotions are heightened, to confuse the presumption of equal shared parental responsibility for a presumption of equal time. However, the two concepts are not the same and have different legal meanings. If you are considering separation, or if you have separated and have questions about parenting arrangements, it's important to get legal advice to help you make informed decisions about what is best for your family.

Lander & Rogers' family lawyers have extensive experience advising individuals on parenting matters. Please contact a member of our Family & Relationship Law team for more information on the topics raised in this article.