Written by Rachael Vincent, Solicitor
The short answer is “No!” Although often confused, equal shared parental responsibility and equal time are separate and distinct.
What is Parental Responsibility?
Parental Responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Parental Responsibility can be exercised solely or jointly. In the absence of any court order, parental responsibility is deemed to be joint (or “equal shared”), meaning that parents have to consult the other and make joint decisions in relation to major long term issues affecting their children. Such major long term decisions can include:
- Where a child goes to school;
- What religion a child practices;
- What surname a child has;
- In the event that a child has major health issues, what treatment that child should receive and where they should receive it; and
- Changes to the child’s living arrangements, for example, a proposed relocation to a new location making it difficult for the child to spend time with one parent.
What is Equal time?
Equal time refers to a parenting arrangement for separated parents whereby children spend the same (or close to the same) amount of time with each parent. This is often on a “week about” basis, meaning during school term time, the children spend one week with one parent and then the following week with the other parent. There can also be other ways to divide the time evenly, depending on the parents’ and the children’s circumstances.
How do you get Equal Shared Parental Responsibility?
If there are no court orders or parenting plans in place, parents automatically have equal parental responsibility.
If, after having consulted the other parent, parents continue to have difficulty in making decisions relating to parental responsibility, there are avenues that parents can take without having to approach the Court. Local agencies can assist and offer mediation services to separated parents to discuss parenting arrangements and parental responsibility. Such agencies can include:
- Relationships Australia;
- Local Family Relationship Centres;
- Catholic Care; and
- Private Mediators.
It is a requirement that parents attend mediation prior to commencing Court proceedings, other than in cases where there is urgency or family violence. If no agreement can be reached at the mediation process it is open to either parent to file an Application with the Court.
In Australia there are two Courts that have the jurisdiction to make a parenting order, the Family Court, and the Federal Circuit Court. When making any parenting order in relation to children both courts operate on the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. In the case of Goode (No 2) [2007] FamCA 31, the presiding Judge stated:
“From the children’s perspective, I can only see good will come from their parents jointly exercising parental responsibility.”
Once a Court makes an order for equal shared parental responsibility the Family Law Act 1975 (“the Act”) then requires the Court to look at whether an equal time arrangement is “reasonably practicable” and “in the best interests of the children.”
Again, equal shared parental responsibility is not the same as equal time, rather it comes before an order for equal time is considered.
Parents who have equal shared parental responsibility for their children only have to consult the other in relation to major long term issues affecting the children, not simple day-to-day issues. Day-to-day issues include what the children have for meal time or whether they attend school excursions.
When might a Court not make an order for Equal Shared Parental Responsibility?
There are some circumstances where the Court may decline to make an order for equal shared parental responsibility, for example:
- Where there has been alleged violence that has continued since separation;
- Evidence of family violence or child abuse by the other parent where a parent or child reasonably fears for or is apprehensive about their personal wellbeing or safety.
Sometimes the Courts can decline to make an order for equal shared parental responsibility on the basis that communication between the parents is so bad that there can be no hope that they could effectively communicate to discuss major long term issues surrounding their children. The Full Court of the Family Court has said in relation to this:
“It appears to us that a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it inappropriate to make an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with section 65DAC by consulting and making a genuine effort to reach agreement about major long term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”
In the overwhelming majority of cases, however, the Court does make an Order for Equal Shared Parental Responsibility.
