Spot the difference: Shared parenting, shared time and sole responsibility

When you play around with language and well- known concepts, beware the law of unintended consequences.

By Steven Edward, Head of Family Law at Australian Family Lawyers (Melbourne) and Brent Astle, Lawyer at Australian Family Lawyers (Mornington).

A brief background on legal language

In the original version of the Family Law Act in 1975, there was:

•  “Custody” – Which parent the children live with after separation
•  “Access” – When the children stay with their other parent 
• “Guardianship” – Normally a joint right and responsibility of each parent to be able to have a say on long term issues affecting their children. E.g. where they go to school, important health issues.

Following the Senate report “Every Picture Tells a Story” in 2003, those well- known and understood terms were pulled out of the Family Law Act and replaced with:

• “Live with” = “custody”
• “Spend time with and communicate with” = “access”
• Having “equal shared parental responsibility” = “joint guardianship”

The first two haven’t caused problems.

With the rebadging of joint guardianship as equal shared parental responsibility, and that idea being discussed as the shorter “shared parenting”,  a lot of people mistakenly thought this refers to arrangements for the children to live with each parent, and that the “normal” thing to do is have a shared time arrangement.

Another change to the Family Law Act reinforced that impression: it says that a Judge starts with a presumption that parents will have equal shared parental responsibility. Unless there are good reasons to give one parent sole responsibility for long terms issues affecting the children (see below), a Judge has to consider whether it is in the children’s best interests and if it is reasonably practical for the children to spend equal time with each parent. 

What happened after these changes are we’ve seen many separated parents agreeing to shared living arrangements for their children.

Equal shared parental responsibility ≠equal shared time

Even though the number of agreed shared time arrangements has increased as a result, the number of times that Judges in disputed cases actually “impose” shared time is far more limited. In a contested case, the Judge will start off with a presumption that there should be equal shared parental responsibility or “shared parenting”, and they will consider whether there should be equal time. 

However, in many cases following separation, equal time is not a good idea, and it’s common in contested Court cases to see equal shared parental responsibility, but not equal shared time.

A shared time arrangement actually requires good communication on a day to day basis between both parents for it to work properly. It’s very common following separation for parents to not be communicating very well, and that can be one reason why a Judge in a disputed case will consider, but not adopt, a shared time arrangement. Other obstacles to a properly working shared time arrangement can be travel distances once parents separate.

Having said that, if parents separate and set up a shared time arrangement, but communication issues or other problems arise, it can be difficult to get that changed through a Court application. It may be hard to persuade a Judge a year or more after a shared time arrangement has been in place, that this should be fundamentally changed to the children living primarily with one parent.

Sole parental responsibility vs equal shared parental responsibility

Let’s drill down on the difference between sole and equal shared parental responsibility, and when a Judge could order sole responsibility.

Each parent has equal shared parental responsibility unless a Court makes a different order, and they have to make long term decisions about their children jointly and together. If parents have equal shared parental responsibility and one parent unilaterally makes a decision that should have been made together with the other parent, e.g. which school a child will be enrolled in, then the other parent may apply to the Court for a decision on that. When a parent has sole parental responsibility, they are allowed to make decisions relating to their child’s long-term issues without the input of the other parent or approval by a Court.

Some classic examples of cases where sole parental responsibility has been granted are where there has been family violence that places the children at risk in one parent’s care, where one parent is in jail and cannot be present to make decisions about the children or where there is a high level of conflict between both parents such that communication on these decisions would be incredibly difficult. This is a non-exhaustive list. Read more about how the Court determines child arrangements here.

Interestingly, a Judge may also order that a parent have sole parental responsibility in relation to a specific issue. For example, they could make an order that the parties have joint parental responsibility but that one parent has sole parental responsibility in relation to medical issues. 

If you would like to obtain advice as to the most appropriate options for you and your children, then we encourage you to approach our firm for a confidential discussion via the form below.