Shared Care of My Children: Understanding Parental Responsibilities and Legal Considerations

A critical consideration for anyone with children who is facing separation from their spouse or partner is what arrangements will be put in place for any children of the relationship.

We often find that we are discussing arrangements for children with people who are dealing with separation. Some people consider a shared care arrangement to be a reasonable arrangement. Still, for others, that is not an outcome they think is appropriate for their children.

The Family Law Act says the children’s best interests are the guiding principle. What that means in each case can vary significantly and will be interpreted in light of various factors. These can include the number of children, their age, how far apart the parents live from each other, and any health or medical conditions affecting the children.

Shared Care In Parenting Matters

Parental responsibility and where children should reside are two different things. When determining the best place for shared care and the amount of time a child should spend with each parent, the Court must:

1. Consider if it would be better for the child to see both parents equally;
2. Consider whether it is reasonably possible for the child to spend equal time with each parent and 
3. If it is, think about establishing an order allowing the child to spend equal time with each parent or including a provision that would do just that.

Suppose the Court chooses not to impose an order requiring a child to spend equal time with each parent. In that case, it must consider whether the kid spends considerable and meaningful time with each parent according to the three previously mentioned criteria.

The Court’s two primary factors to take into account when issuing any order on child arrangements are:

1. The importance of a kid having a meaningful relationship with both parents and
2. They must protect the child from exposure to or suffering from abuse, neglect, or domestic violence to prevent physical or psychological harm.

The requirement for the Court to prioritize protecting children from harm is to give it more weight.

It would help if you prioritize your child’s needs over your interests while making decisions about their arrangements.

Presumption of Shared Parental Responsibilities

Section 61DA of the Family Law Act requires that when a Family Law Court issues a parenting order, the Court has to presume that it is in the child’s best interests for both parents to share equal parental responsibilities. If the Court determines that one of the parents has committed child abuse or domestic violence, the presumption is lifted.

The presumption that parental duty should be shared equally can be overturned by demonstrating that it is not in the child’s best interests for the parents to share that obligation. Evidence that the parents are incapable of cooperating or that one parent constantly prioritizes his or her own wants over the children may persuade a court that shared parental responsibility is not in the child’s best interests.

The presumption of shared parental responsibility applies to child-related decisions. It does not apply to the Court’s determination of how much time the child should spend with each parent. However, when parents have shared parental responsibility, they are more likely to spend equal or substantial time with their children. The topic of sharing time with children is discussed below.

Parental Responsibility

“All those obligations, authority, and powers which, by law, parents have in the care of children” is the definition of parental responsibility given by the Family Law Act. As part of their parental duty, parents must give their children:

• A safe place to live
• Necessary health care
• An adequate diet
• An education
• An upbringing

Whether they are married, separated, divorced, in a de facto relationship, or have never married or shared a home, each parent of a kid has parental responsibility for that child. Being able to pay child support independently does not absolve parents of their duties.

Choosing whether to take a child to an elective medical procedure, allowing the child to participate in extracurricular activities, raising the child in a particular religion, and making other day-to-day decisions regarding the child’s upbringing are all considered parental responsibilities.

Unless a parenting order assigns a specific duty to one parent over the other, parents have equal parental responsibilities. For instance, a parenting order may designate one parent as the decision-maker when the other cannot agree on the child’s place of residence.

Parents can also decide how to divide up the responsibilities of parenthood by creating a parenting plan. If both parents eagerly engage in a written and signed parenting plan, the Court must consider their views. However, the Court is required to issue a parenting order. In that case, it will only abide by a parenting plan if it is in the kid’s best interests.

The Court Responsibility

The Court is also responsible for assessing whether there is an unacceptable risk of harm to the children, and that will be a significant factor in the Court determining what is in the best interests of the children. Suppose there are allegations that the children are at risk of harm, whether that is physical harm or emotional harm. In that case, the Court must carefully consider these and determine the appropriate parenting arrangements.

Whilst the Family Law Act’s text is available online and can be read by anyone, there is no substitute for specific advice from an experienced Family Lawyer about how that legislation is interpreted in practice and the possible outcomes. 

Call the Family Law team at Aylward Game Solicitors on 1800 217 217 for advice about your family law situation.

FAQs:

What exactly does it mean to have equal shared parental responsibility?

When parents of a child under the age of 18 separate, they retain parental responsibility for them, which means that both parents make decisions on crucial long-term matters such as where the child will attend school, major health decisions, and religious adherence. This is true except when a judge determines it is in the child’s best interests to revoke parental responsibility from one or both parents. No rule requires children to spend equal or 50/50 time with both parents.

What are the advantages of shared care?

Shared care options can be beneficial for both children and parents. 

For example: 

• Children have close and meaningful relationships with both parents. 
• Each parent spends quality time with the children without rushing them back into their care.
• Both parents can significantly involve themselves in their children’s lives.