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All things being equal, ‘equal shared parental responsibility’ does not mean ‘equal time’

13 Jul 2020

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  • Family Law

On 15 June 2020, Labor MP Graham Perrett introduced a Bill to the Commonwealth Parliament which, if passed, would amend one of the most controversial sections of the Family Law Act. Perrett’s Bill, called the Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020, seeks to reverse the 2006 amendments to the Family Law Act that introduced the presumption of ‘equal shared parental responsibility’ (ESPR).

Given the 2006 amendments may soon enter the public debate again, Andrew Ekert has put together a quick refresher on what the presumption of ESPR is, why it is important and how it can affect your family law case.

What is equal shared parental responsibility?

‘Parental responsibility’ is essentially the power to make ‘long-term’ decisions about a child. These include, for instance, the ability to decide what school the child attends, what medical treatment they receive, what language they learn, and what religion (if any) they will observe. When a judge is asked to ultimately consider whether either, or both, parents should have parental responsibility, the Family Law Act requires them to presume that it is in the child’s ‘best interests’ for both parents to share this decision-making power. However, this presumption doesn’t apply if the judge reasonably believes that either (or both) of the parents has engaged in family violence or abuse.

The presumption is important because most decisions made in family law cases are guided by what the judge considers will be in the child’s ‘best interests’. In this way, the Family Law Act tells judges that ESPR is the ‘starting point’ because it is, by law, in the child’s best interests (unless there are family violence or abuse issues).

If a judge makes a final order for ESPR, the Family Law Act then requires her or him to then consider whether the child spending ‘equal time’ with their parents is in their best interests and reasonably practicable. If it is, the judge must consider making an order for equal time (of course, whether the order is actually made remains at the discretion of the judge).

Does ‘equal shared parental responsibility’ mean ‘equal time’?

As significant as the presumption of ESPR is, ESPR does not mean ‘equal time’. Accordingly, an order for ESPR does not automatically result in an ‘equal time’ order.

The casebooks are full of situations where judges have ordered that the parents should share ESPR but not equal time with the child. Sometimes this is because it has been demonstrated that one of the parents has engaged in family violence or abuse. But other times, even where the child is fortunate enough to have two loving and supportive parents, such an arrangement may just not be in the child’s best interests for some other reason. For example, factors such as the age of the child, the child’s relationship with their parents or simply the logistics of the arrangement (distance, work schedules, lifestyle etc.) may simply make an ‘equal time’ arrangement impossible.

How can we help?

Ultimately, judges exercise a great degree of discretion in deciding what arrangements are in a child’s ‘best interests’. Because every family is different, a host of conflicting factors usually come into play and it can be difficult to work out how they all fit together. If you need help ensuring the best possible arrangements for your children are in place, our Family Law team can help set you on the right track and guide you through the process. Contact us on 02 6285 8000 or by email.