What is equal shared parental responsibility?

Equal shared parental responsibility is the presumption that separating parents retain equal responsibility for children of the relationship.

A common misconception is that equal shared parental responsibility means each parent must be given equal time with their child.

How does family law in Australia approach the rights of children? 

Under the Family Law Act 1975, separating parents have a presumption of equal shared parental responsibility of their children. This means that the law views this as generally being in a child’s best interests. The law requires that the Family Court apply this presumption before it makes any parenting order. 

How does the law define parental responsibility? 

Parental responsibility is defined by Australian law as the following. ‘All the duties, responsibilities, and authority which, by law, parents have in relation to children’.

Examples of parental responsibility include decisions about: 

• The child’s current and future schooling and education 
• Where the child will live and other living arrangements 
• The child’s upbringing including any cultural or religious decisions
• Where the child travels 

It is notable that whilst each parent may have equal shared parental responsibility this does not mean that each parent will be entitled to see the child for equal amounts of time. The amount of time a parent has with their child does not change the parental responsibility they have under the law. 

Shared Responsibility and Equal Time

A child may have two loving and caring parents, and a Court can order equal shared parental responsibility. However other factors may make it difficult for each parent to see the child for equal time. For example, practical factors such as the child’s school and the location of each parent’s house may mean that the child will stay longer at one parent’s residence. 

Hence, parents will be able to spend equal time with their child only if: 

• The parents agree with each other to each spend equal time with their child.
• The Family Court finds that equal time is in the best interests of the child.
• It will be practical for all parties.

If the Court finds this is the case it can make a parenting order to that effect. 

Shared Parental Responsibility and Decisions

Having equal shared parental responsibility also means that both parents need to agree on decisions made about their children. Thereby it will be important for separating parties to consult their ex before making major changes to their child’s life. 

Having shared responsibility means it can be important to consult your ex before making major changes to your child’s life. 

The law will presume each parent should have equal long-term decision making power about their child, unless it is established that having equal responsibility is not in the child’s best interest. An example of an instance where this assumption is not in the best interests of the child would be if one parent has been historically neglectful of the child. 

Sole parental responsibility 

Whether or not parents are given equal shared parental responsibility, or if one parent gets sole parental responsibility for a child, will depend on the child’s best interests. 

This includes cases where separating parents have equal shared parental responsibility in every aspect of their child’s life except one issue where only one parent retains responsibility. For example, it could be agreed that only one parent will have responsibility for the child’s religious upbringing. 

In other circumstances, it may be that only one parent receives responsibility for all aspects of a child’s life. Having sole responsibility for a child means that only one parent can make decisions about the child’s life. This means that the other parent has no say in the child’s upbringing. 

The Court will only be favourable to one parent having sole responsibility when the presumption has been effectively rebutted. That parent would need to demonstrate that equal shared parental responsibility is not in the child’s best interests.

When does the presumption of equal shared parental responsibility not apply? 

It is notable that there are certain cases where the presumption does not apply. These include circumstances where: 

• There is a history of family violence in the family
• There is evidence of abuse of the child or another child who is a member of the parent’s family 

If you need any assistance regarding any family matters, please feel free to reach our team. We’d be happy to assist.