“Shared custody” is a term that is frequently heard in relation to childrens matters, but what does it mean?
In the past, the term “custody” has been used to describe the care arrangements for a child. Nowadays, the terms “lives with” and “spend time with” are used to describe care arrangements. For example, a child may live with their mother and, at specified times, spend time with their father.
The Family Law Act 1975 refers to children spending ‘equal time‘ or ‘significant or substantial time’, rather than “shared custody”.
Under the Act, the court must apply the presumption that it is in the child’s best interests for parents to have equal shared ‘parental responsibility’, unless there are reasons to rebut it or reasons that it does not apply (eg family violence, child abuse, high level of conflict between parents). The term ‘parental responsibility’ means all the duties, powers, responsibilities and authority by law which parents have in relation to children. Parents sharing this equally means they work together and consult each other regarding decisions about the child’s care. This is not a presumption that the child spends equal or shared time with each parent.
If equal shared parental responsibility is in the child’s best interest, the court will then consider if the child spending equal time with each parent is in their best interest and reasonably practicable. If the court does not think equal time is suitable in the circumstances, the court must consider whether spending significant and substantial time with each parent is in the child’s best interest. Substantial and significant time includes time on weekends, holidays, and weekdays that allows the parent to be involved in the child’s daily routine – and on special occasions for both the child and the parent.
If the court does not apply the presumption for equal shared parental responsibility, the court may still make Orders for equal time or substantial and significant time, however the reasons the presumption is not applied will usually also be relevant to with whom the child lives and spends time.
For more information or to make an appointment please contact:
Carlos Turini at: cturini@elringtons.com.au or
Phone the Family Law Team on (02) 6206 1300
