Following a divorce or separation in cases where there are children, the parents have to come up with parenting arrangements based on their situations. Of these, shared custody in Australia refers to the parenting arrangements wherein both parents have equal shared responsibility of providing care for the child/ren.
Shared custody in Australia is more commonly referred to as shared parental responsibility. This is because Australian law does not prefer to use the term ‘custody’ because of its otherwise negative connotations. Instead the term parental responsibility is used.
Under Section 61B the Family Law Act (1975), it is is defined as: parental responsibility, in relation to the child, means all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children.
Shared Custody Australia: Important Points Considered By Court
Generally in parenting matters, if the court has been approached, the presumption of equal shared responsibility is taken into consideration when any parenting orders are made.
The presumption of equal shared responsibility, as stated in Section 61DA of the Family Law Act (1975), means that the court applies this presumption 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 primary considerations in understanding what is in the best interests of the child is as follows:
- The benefits to the child of having a meaningful relationship with both parents; and
- The need to protect the child from harm (physical or psychological) from being subjected to, or exposed to, abuse, neglect, or family violence.
According to this, the presumption is rebutted in cases where a parent has engaged in:
- abuse of the child, or another child, who at the time was a member of the parent’s family; or
- family violence.
Additionally, this presumption is in relation with parental responsibility and not the amount of time the child gets to spend with the parent. This can differ on a case-by-case basis.
When making decisions about shared custody in Australia, the court considers the following factors:
- Whether or not the child spending equal time with each of the parents would be in the best interests of the child;
- Whether or not the child spending equal time with each parent is “reasonably practicable.” For instance, in this regard the court will consider if the parents live close to each other and if travelling is practical.
If the court is satisfied that shared custody is the ideal option, the court will consider making a parenting order for the child to spend equal time with each parent. If a direct parenting order is not made, the court will include some kind of provision in the order which allows parents to have shared custody in Australia.
Case Study Examples
For a better understanding of shared custody in Australia, let’s explore previous case studies that dealt with this matter.
- In this case, the child spent a third of their time with the father. The father wished to spend equal time with the child once they started going to school. This was challenged by the mother who stated that the father has work commitments.
- However, the court made the order stating that equal care and shared custody will be considered. In making this decision, the court took into consideration the best interests of the child – namely the benefit to the child of spending time with each parent.
- In this case, the father was violent towards the mother. The mother had experienced physical violence, stalking, death threats, and property damage from the father. Moreover, the father was also violent with the children.
- The court considered the best interest of the children, specifically the need to protect the children from all kinds of physical and/or psychological harm. Since the father posed a threat to the safety of the children, the court ordered that the mother have sole parental responsibility of the children, and the father was not allowed to contact the children.
Shared Custody In Australia: Equal Time Orders
As mentioned above, shared custody arrangements where parents get “equal” time with the child may or may not be possible depending on the specific circumstance of the family.
However, when parenting arrangements are made, parents formulate a shared care plan wherein the child gets to spend equal time with each parent. The appropriate arrangements will differ case-by-case, taking into consideration each parent’s work commitments, etc.
There are various things considered when making “equal time” orders under shared custody in Australia. These include:
- The parents’ current as well as future capacity to facilitate an equal time order;
- The distance between both parents’ homes;
- The parents’ current and future capacity to communicate effectively with one another and resolve difficulties which may arise in the future, if an equal time order has been implemented; and
- The impact that an equal time arrangement will have on the child.
Importance Of Seeking Legal Advice
In divorce or separation cases, the matters become more complicated and stressful when children are involved. This is because, following the breakdown of the relationship, each parent worries about the consequences this can have on the child.
As we have seen, orders around shared custody in Australia are made by evaluating what’s in the best interests of the child. Each case differs significantly because of individual circumstances of each family.
Having legal guidance that is tailored to your family matter is especially important to ensure that all involved parties are able to reach their desired outcomes. Family lawyers can help with chalking out shared care arrangements that are appropriate to your particular situation.
At JB Solicitors, our compassionate family lawyers have a wealth of experience in dealing with custody matters. Having dealt with a wide variety of cases, they have the knowledge of helping you to navigate through the legal procedures efficiently. Please do not hesitate to get in touch with our friendly team to have a confidential chat about all family law matters.
Contact JB Solicitors today.