Under the Family Law Act there is a presumption of equal shared parental responsibility. In essence this means that, unless there are family violence issues, the court must apply the presumption that it is in the best interests of the child, for the child’s parents to have equal shared parental responsibility.
What does equal shared parental responsibility mean?
Parental responsibility means all the duties, powers, responsibilities and authority, which parents have in relation to their children. The definition of parental responsibility is important, as the presumption for equal shared parental responsibility does not mean that the amount of time a child spends with each parent needs to be equal.
However, the Court will consider whether a child should spend equal or substantial and significant time with each parent in certain circumstances. In essence, if a parenting order provides that the child’s parents are to have equal shared parental responsibility for a child, the Court must consider the following:
– Whether the child spending equal time with their parents would be in the child’s best interests; and
– Whether the child spending equal time with each of their parents is reasonably practicable. When determining whether it is reasonably practicable, the Court will have regard to how far apart the parents live from each other, the parent’s current and future capacity to implement the arrangement and the parents’ capacity to communicate with each other and resolve difficulties.
If the Court considers that it is in the child’s best interests and reasonably practicable, they may make an order for the child to spend equal time with each of their parents.
How does the Court decide what is in the child’s best interests?
Under the Family Law Act, the paramount consideration for the Court when making any parenting orders is what is in the child’s best interests. To this end, it is quite common for the Court to appoint an Independent Children’s Lawyer. An Independent Children’s Lawyer’s job is to assist the Court in determining what is in the child’s best interests.
The Court is required to consider a number of factors prior to making a parenting order. The main factors are the benefit to children of having a meaningful relationship with both parents and the need to protect children from physical, or psychological harm, caused by abuse, neglect or family violence.
The additional factors that the Court must consider include:
– Any views of the children depending on their age and maturity. If an Independent Children’s Lawyer has been appointed, then they will ensure that the children’s views are placed before the Court.
– The nature of the relationship between the child and the parents or any other persons such as grandparents.
– The amount of participation of each of the parents in the child’s life.
– The effect on the child from separation from either of the parents, grandparents or siblings.
– The practical difficulty and expense of the child spending time with and communicating with either of the parents.
– The capacity of each parent to provide for the emotional and intellectual needs of the child.
If you are going through the breakdown of a relationship and need advice on your rights in relation to children or property call Barwick Boitano today on (02) 9630 0444 or email on email@example.com for an appointment.
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