Where do the kids live after separating? The concept of shared parental responsibility

Many couples are able to agree on arrangements for the ongoing care of their children after they separate. These arrangements can be documented through parenting plans or formalised in consent orders without the need to attend Court.

Generally, parents are required to make reasonable attempts to resolve disputes about their children and, where agreement cannot be reached, must attend compulsory dispute resolution.

The Family Law Act 1975 (Cth) (the ‘Act’) provides a presumption of shared parental responsibility when considering the future arrangements for children. This concept however is sometimes misinterpreted as meaning that the children will spend the same amount of time with each parent.

This article provides an overview of how children’s matters are decided and explains the concept of shared parental responsibility.

How are children’s cases decided?

When negotiating children’s matters, the parties should take into consideration the way the Family Court would determine such matters should parenting issues not be resolved.

The overriding principles considered by the Court are that the best interests of the child are paramount. Essentially, this means that:

• children should know and have the benefit of a meaningful relationship with both parents;
• children should be protected from physical and psychological harm and harm resulting from them being subject to family violence;
• children should receive parenting that allows them to reach their full potential;
• parents should cooperate in determining what is best for the children;
• unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents and other people significant in their lives.

What is shared parental responsibility?

The presumption of equal shared parental responsibility comes from ss 61DA and 65DAA of the Act. Section 61DA provides that ‘when making 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 parental responsibility for the child’. The presumption is subject to exceptions such as where there are issues of family violence or abuse.

Equal shared parental responsibility means that each parent should be jointly and equally responsible for significant long-term matters concerning their children such as making decisions about their health, welfare, religious and cultural upbringing and education.

The principle of shared parental responsibility has often been misconceived with separating couples believing that it is a ‘given’ that a child or children will spend equal time living with each parent after separation. This is not the case – living arrangements are decided with the main objective of the best interests for the child and a practical approach to what is realistic in light of the family dynamics, work commitments and other responsibilities.

Section 61DA specifically states that the presumption of shared parental responsibility ‘…relates solely to the allocation of parent responsibility [and not] the amount of time the child spends with each of the parents.’

How are living arrangements determined?

The amount of time a child spends with each parent will depend on a number of factors.

In considering whether a child should spend equal time with each parent, the Court must be satisfied that it is in the best interests of the child to do so and that such arrangements would be reasonably practical. If equal time living arrangements are not appropriate, then the Court will consider the child spending substantial and significant time with each parent.

In addition to the matters already outlined above, the following will be relevant in determining the best interests of the child:

• any views expressed by the child;
• the nature of the existing relations between the child and his or her parents as well as any other significant people such as grandparents and other relatives;
• the extent to which each parent has already participated in the child’s life;
• the likely effect on the child or any significant change in circumstances;
• the age and maturity of the child;
• any cultural matters that should be considered.

Factors taken into consideration regarding the practicalities of an equal time arrangement include:

• how far apart the parents live;
• the proximity of each residence to the child’s education centre or child care;
• the parents’ capacity to implement equal time arrangements;
• the parents’ willingness and ability to communicate, resolve conflict and deal with any issues that may arise;
• the availability of the parents both physically and emotionally with consideration to work commitments, commitments to other family members and before and after school care options.

Conclusion

Shared parental responsibility means working with your ex-partner to make important decisions about your child’s life.

The Family Court has significant discretion and will take a comprehensive approach to determine what is in a child’s best interests when deciding living and other arrangements.

Court proceedings should be a last resort to determine children’s matters and separated couples should be cooperative and flexible to ensure that the children’s best interest are the paramount consideration.

By resolving disputes through mediation, separating couples can avoid the cost and anguish of attending Court in circumstances that are usually already fuelled with emotion.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.