Kristen Mitchell-Scott, Solicitor at Mitchells Solicitors, discusses what expectations arise from having equal shared responsibility and ensuring that your clients are well aware that it does not necessarily mean equal time. She examines the Family Law Act 1975 (Cth) to clarify this further.
We all know that a separation between parties is fraught with emotion, particularly so when children are involved. The next natural step for most people is to want to sort out their parenting arrangements.
Regardless of the circumstances surrounding how the separation occurred, your client and their ex-partner are likely to start out with the understanding that they will have shared care of their children. This is the ideal situation. However, reality is often different to what we anticipate will occur and, unfortunately, equal time is not what your client may end up with.
Pursuant to s61C Family Law Act 1975 (Cth), where no formal parenting agreement has been reached, it is presumed parties will continue to have equal shared parental responsibility. Parental responsibility is defined in s 61B Family Law Act 1975 (Cth) as “all the duties, powers, responsibilities, and authority which by law, parents have in relation to children”. This extends to decisions about what are called major long-term issues and, as defined in s 4, these include decisions regarding the children’s education, health, name, religion and, what is often most important, any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with one parent.
Accordingly, clients often believe that, if they have equal shared parental responsibility, then they’re entitled to equal time. This is not always going to be the case.
If your client and their ex-partner commence negotiations to determine the ‘spend time arrangements’ for their children, as the solicitor, you must ensure that the best interest of the children are the paramount consideration for your client. This is exactly the standard that the Court applies when making parenting orders, as per s 60CA Family Law Act 1975 (Cth).
If disagreement arises, you should be advising your client to engage in mediation, or another form of dispute resolution. This is to prevent rushing off to Court and to preserve your client’s relationship with their ex-partner, in order for co-parenting to be easier. However, for the purposes of this Article, I will discuss the presumptions that the Court applies when required to make parenting orders by warring parents.
Pursuant to s 61DA Family Law Act 1975 (Cth), when making a parenting order, the Court applies the presumption of equal shared parental responsibility, where this is in the best interests of the child. The presumption will not apply if the Court believes, on reasonable grounds, that a parent or an associate of the parent has engaged in child abuse or family violence. Should the presumption be applied, we then move to consider whether the parents would be able to have equal time with the child.
Importantly, there is no presumption for equal time. Provided the Court has ordered equal shared parental responsibility, the Court must then consider whether equal time with the child would be in the child’s best interests and whether it would be reasonably practicable. If the answer to either of these questions is no, then the Court will then consider whether substantial and significant time with the child is in the child’s best interests and reasonably practicable.
Substantial and significant time is defined in s 65DAA(3) Family Law Act 1975 (Cth) as time which includes weekdays, weekends and holidays, which allow the parent’s involvement in the child’s daily routine, significant occasions and events for the child and for the parent. In order for the Court to consider whether such arrangements would be in the best interests of the child, they must go back to the requirements under s 60CC Family Law Act 1975 (Cth), the primary considerations being the benefit of the child having a meaningful relationship with their parents, balanced against the need to protect the child from any harm from being subjected to or exposed to family violence, with the latter outweighing the former.
Bottom line – equal shared parental responsibility does not automatically equal equal time. It is important to refocus your client as to what is in the child’s best interests and work back from there.
Kristen Mitchell-Scott holds dual degrees in Bachelor of Laws (Honours) and Bachelor of Arts, majoring in Japanese and Criminology from the University of Queensland, and a Graduate Diploma in Legal Practice from the College of Law. She will commence her Master of Applied Law (Family Law) at the College of Law in 2020. Contact Kristen via email, phone (07) 3373 3633 or LinkedIn
