Shared Care in Parenting Matters

People often talk about having ‘shared custody’ of children. However, the Australian family law system does not actually use the term ‘custody’. Instead, it uses the term parental responsibility, meaning legal responsibility for making important decisions about the children. Parental responsibility is usually shared equally between the parents. Shared care in parenting matters generally means the children divide their time between two parents’ households.

Parental Responsibility

Parental responsibility, in relation to a child, means all of the duties, powers, responsibilities and authority which by law, parents have in relation to children. Parents generally both have Parental Responsibility for a child, under the age of 18 years, provided that the child is not married or living in a de facto relationship. However, parental responsibility may be displaced by court orders made pursuant to the Family Law Act.

The court will typically make orders that both parents be provided with equal shared parental responsibility as this is usually in the best interests of the child. However, this may not always be case and the Court can revoke a parent’s parental responsibility if there are reasonable grounds to believe that a this parent (or somebody who lives with a parent of the child, ‘the other person’) has engaged in:

• Abuse of that child;
• Abuse of another child who at the time was a member of the parent’s family;
• Abuse of another child who at the time was a member of the other person’s family; or
• Family violence towards the child.

Best Interests of the Child

The best interests of the child is the paramount consideration when the court makes Parenting Orders. Pursuant to the objects underlying the parenting section of the Family Law Act 1975, the child’s best interests are met by:

• Consider what arrangement would promote the safety of the child and the person who has care of the child; 
• Consider the developmental, psychological, emotional and cultural needs of the child and the capacity that each parent has to meet these needs of the child; 
• Consider whether there is any benefit to the child to have a relationship with both parents, provided it is safe to do so; and
• If it is, anything else that may be relevant to the particular circumstances of the child, such as whether it is appropriate to consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

The court must consider the two primary considerations and the additional considerations, as set out in section 60CC of the Act (sometimes referred to as Section 60CC factors) to determine the best interest of a child.

The primary consideration of the Court is to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The court will give greater weight to the need to protect the child from harm, over the benefit to the child of having a meaningful relationship with either of their parents.

The additional considerations are:

• Any views expressed by the child and any factors that the court thinks are relevant to the weight that should be given to the child’s views (such as the child’s maturity);
• The nature of the child’s relationship with each of the child’s parents;
• The nature of the child’s relationship with other persons such as grandparents and other relatives;
• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues relating to the child;
• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to spend time with the child;
• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to communicate with the child;
• The extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child;
• The likely effect of any change 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 person who the child lives with (such as a grandparent or other family member);
• The practical difficulty and expense of a child spending time with and communicating with a parent;
• Whether any practical difficulty or expense of a child spending time with and communicating with a parent 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 of the child’s parents and any other person (such as a grandparent) to provide for the needs of the child, including the child’s emotional and intellectual needs;
• The maturity, sex, lifestyle and background of the child and either of the child’s parents;
• Any other characteristics of the child that the court thinks are relevant;
• If the child is Aboriginal or Torres Strait Islander, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the likely impact that any proposed parenting order will have on that right;

• 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;
• The existence and terms of any family violence order;
• Whether it would be preferable to make the 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 considers relevant.

Shared care via Equal Time Orders

‘Equal Time’ refers to the child spending the same amount of time with each parent. Common configurations of equal time arrangements are a shared care arrangement where a child lives one week with each parent in a fortnight cycle or two consecutive weeks with each parent in a four week period. However, the appropriate arrangements will differ from family to family.

Provided the parties have equal shared parental responsibility, the court must then consider whether a shared care order for the child to spend equal time with each of the child’s parent’s, is in the best interests of the child.

If the court determines that equal time is in the best interests of the child, the court must consider if an order for equal time is reasonably practicable.

When determining whether an order for equal time is reasonably practicable, the court must have regard to:

• The distance between the parent’s homes;
• The parent’s current and future capacity to facilitate an Order for equal time;
• The parent’s current and future capacity to communicate with one another and resolve difficulties that may arise with implementing an order for equal time (a common example, is how parents would manage a child leaving their homework or school uniform at the home of the other parent);
• The impact that an arrangement of that kind would have on the child; and
• Such other matters that the court considers relevant.

If the court finds that equal time is both in the best interests of the child and is reasonably practicable, the court must consider making an order that provides for the child to spend equal time with each of the parents.

Substantial and Significant Time

Prior to the 2023 Family Law Act amendments, ‘Substantial and significant time’ was defined as a child spending time with a parent both weekends/school holidays and school days, and that the time allows the parent to be involved in the child’s daily routine and in occasions and events that are special to the child and it allows for the child to be involved in occasions and events that are significant to the parent.

Under the current legislation, this determination is no longer a specific factor of the Court, rather the Court will take a wholistic approach and consider the amount of time that a child should spend with a parent in accordance with what is considered to be in their best interests. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.