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.

When considering parenting orders, the court will also need to decide where the children should live. This is a separate question from the question of parental responsibility. In making a decision about where a child should live and how much time they should spend with each parent, the court must:

  • Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  • Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  • If it is, 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.

If the court decides not to make an order for a child to spend equal time with each of the parents, then it must then consider the child spending substantial and significant time each of the parents on the same three bases as outlined above.

When making any order about arrangements for a child, the court’s main two considerations are:

  • The benefit to children of having a meaningful relationship with both parents; and
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The court is required to give greater weight to the consideration of the need to protect children from harm.

When considering arrangements for your child, it is important to focus on what is best for him/her as opposed as to what is best for the parent.

Best Interests of the Child

The Best Interests of the child is the paramount consideration when the Court makes a Parenting Orders. Pursuant to the Objects underlying the Parenting section of the Act, the child’s best interests are met by:

  • Ensuring that the child has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the child’s best interests;
  • Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
  • Ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
  • Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

The Court must consider the 2 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 considerations are:

  • The benefit to the child of having a meaningful relationship with both parents; and
  • The need 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 both parents.

The additional considerations are:

  • Any views expressed by the child and any factors that the Court thinks that 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 have 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 have taken, or failed to take, the opportunity to spend time with the child;
  • The extent to which each of the child’s parents have taken, or failed to take, the opportunity to communicate with the child;
  • The extent to which the each of the child’s parents has fulfilled, or failed to fulfil, the parent’s 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 difficult and expense of a child spending time with and communicating with a parent;
  • Whether any practical difficult and 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 things 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.

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. (61B)

Parents each 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. (61C) However, parental responsibility may be displaced by Court Orders made pursuant to the Family Law Act.

  • The Court must presume 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 does not apply if there are reasonable grounds to believe that a parent of the child (or somebody whom 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.
    • The presumption may be rebutted if the Court is satisfied that an Order for Equal Shared Parental Responsibility would not be in the best interests of the child.
  • If the Court finds that the presumption of equal shared parental responsibly has been rebutted, the Court must make Orders that in the best interests of the child, having regard to the Section 60CC Factors.

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 child living 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 that the presumption of equal shared parental responsibility has not be rebutted, the Court must then consider whether an 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

‘Substantial and significant time’ is 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.

If the Court determines that the presumption of equal shared parental responsibility has not be rebutted but declines to make an Order for equal time, the Court must consider whether an Order for the child to spend Substantial and Significant time with each of the parents are in the best interests of the child.

If the Court determines that substantial and significant time is in the best interests of the child, the Court must consider if an Order for substantial and significant time is reasonably practicable, having regard to the factors considered above.

If the Court finds that substantial and significant 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 Substantial and Significant time with each of the parents.

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

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