In 2006, changes were made to the Family Court legislation which continue to confuse Mums and Dads caught up in disputes about the care of their children.
Section 61DA of the Family Court Act 1975 provides that there is a presumption of equal shared parental responsibility when making parenting orders.
Equal shared parental responsibility means that both Mum and Dad have an equal say in the making of long term decisions in relation to the child or children, such as where the child should go to school, the type of education the child is enrolled in, any religion the child will be involved with, and major health issues.
Equal shared parental responsibility does not mean that when the children are with Mum or Dad that the other parent is required to be consulted on day to day care matters such as what the child is eating, or what specifically the child is doing that day.
Also, the requirement of equal shared parental responsibility of itself, does not automatically mean that the child is required to spend equal time with both parents.
When making a decision as to whether both parents have equal shared parental responsibility the Court must assume it is in the child's best interests for this to happen. This is not the case in matters where there has been family violence, or the child is at risk of harm or abuse.
However, where a Court has made an order that the parties are to have equal shared parental responsibility, the Court must consider making an order for the child to spend equal or significant time with each parent.
When considering whether a child should spend equal or significant time with each parent, the Court will consider what is in the best interest of the child, and pursuant to this a number of factors can be addressed such as:
- the parties' capacity to communicate on matters relevant to the child's welfare;
- the physical proximity of the two households;
- whether the homes are sufficiently proximate so that the child can maintain the friendships in both homes;
- the prior history of caring for the child i.e. have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment;
- whether the parties agree or disagree on matters relevant to the child's day to day life e.g. discipline, homework, health and dental care, diet, sleep patterns etc;
- where they disagree on the above, the likelihood that they would be able to reach a reasonable compromise;
- do they share similar ambitions for the child e.g. religion, culture, extra-curricular activities;
- can they address on a continuing basis the practical considerations that arise with the child living in two homes;
- if the child leaves necessary school work or equipment at the other home will the parents rectify the problem;
- whether or not the parties respect the other party as a parent;
- the child's wishes and the factors that influence those wishes;
- where siblings live; and
- the child's age.
These factors were identified in the matter of H & H  FMCAfam 41, it should be noted that this list is not exhaustive, but indicative of some of the considerations.
If, following a review of the above factors, a Court determines that equal time is not practical, it must then consider making an order for substantial and significant time.
In these circumstances, substantial and significant time does not mean that one parent only sees the child every second weekend and half of the school holidays, but instead, means that the non-resident parent spends time with the child on school days and non-school days, and has real involvement in the day to day life of the child.
The Court may also consider other additional matters at some length. These will include:
- any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes;
- the nature of the relationship of the child with each of the child's parents and with other persons;
- the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the child's parents;
- or any other child, or other person, with whom the child has been living;
- the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
- the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
- the need to protect the child from physical or psychological harm caused, or that may be caused by:
- being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
- being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
- any family violence involving the child or a member of the child's family;
- any family violence order that applies to the child or a member of the child's family;
- whether it would be preferable to make any order that would be least likely to lead to the institution of further proceedings in relation to the child; and
- any other fact or circumstance that the Court thinks is relevant.
In matters of family violence, the Court will promptly consider any Form 4 Notice of Child Abuse or Risk of Child Abuse, and can make interim Orders to protect the child. The Court is also likely to make Orders to enable the Court to collect evidence in relation to the alleged abuse.
Accordingly, far from being an automatic right for each parent to have equal shared care of the children, it is a matter of extensive consideration by the Court, and taking into account the many and varied circumstances which specifically relate to the family in question.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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